Businesses Topics: The Legal Doctrine of Employment-at-Will and Some Exceptions Your Business Needs to Understand

The concept of employment-at-will is still being used in the United States. This policy doctrine when employed by a company is characterized by a Company not offering any job security from the beginning and during the entire time of a specific employment with that company. It states that either party can end the relationship. This commonly includes a direct and obvious lack of both written and verbal forms of job tenure assurance specifically not made by a Company.

There are both benefits and drawbacks to a Company using the employment-at-will policy. First let's look at some benefits a Company would derive. A Company's benefits include being able to quickly dismiss an employee without extensive documented cause as long as it violated no law (Foulkes, 2007). So this creates a speeder employee replacement system (this would work well in a fast food retail establishment). In theory and practice, this saves the company money on processing costs relating to use of supervisory employee time because of the need for no investigation and the subsequent documentation of employee actions, employee interviews all before the point of dismissal. In addition, lower overall legal costs are the result if proper procedures are followed in the actions of the law and all processes related to hiring, employment and final termination of an employee-at-will (Caietti, 2010).

Employment and employment law can be tricky for a Company employing an employee-at-will depending on the circumstance. To achieve an ease of employment of employees-at-will, a Company must be very careful not to imply any form of a contract so certain extra steps should be taken. For example: an implied contract might be surmised by a employee-at-will if a Company offers some form of buy-in for a voluntary retirement fund or savings system (401K) for all employees. As an extra safeguard, a Company needs to clarify their hiring and firing policies and create some form of probationary period as a clear categorical classifier to use to protect their Company from the possibility of future complication from accusation of wrongful discharge or termination. Caietti (2010) explains that as a further safeguard for a Company that Company should consider using a short, written form stating the individual is being hired specifically as an "employee-at-will" with a clear-cut explanation of exactly what that means to the employee-at-will signing the form. The author states that this is better than not having any paperwork as this short written employee-at-will statement of fact would by its very existence encourage a Court to do a pretrial dismissal relating to any employee-at-will instigated lawsuit (Caietti, 2010).

There are often news reports of a Company engaging in unprofessional activities relating to terminating an employee-at-will. Some companies have engaged in subtle yet abusive conduct to encourage a troublesome employee to quit. Tactics include all levels of pressuring to create a hostile workplace environment. The goal of this pressuring is to get an employee-at-will to themselves quit which then relieves a Company of liability and the potential cost and trouble of future litigation. However, if a former employee can prove that these strong-arm tactics have happened, the employee can win in court (Foulkes, 2007).This legal doctrine of "employment-at-will" can be abused in many ways by a Company. A Company can abuse the employer/employee relationship by finding exceptions in the laws that do not violate anything specific and then using them as reference subsequently manipulate a situation to justify terminating that employee. For example: a Company can use an excuse like a "personality conflict "to let an employee-at-will go. Paetkau (2010) notes that in the Strozinsky Case the Court ruled that by "coercing a resignation" out of an "employee-at-will" as a substitute for the direct firing there was found a direct liability by the Company. Other scapegoat excuses can include a claim that the former employee-at-will was not meeting required "performance expectations".

The exceptions that relate to the circumstances of termination of employment-at-will include any violation of any State's public policy, implied contract through use of verbal comments, implied contract by use of written items (employee handbooks) and additionally can happen by violation of the covenant of good faith and fair dealing. Olson (2010) writes that many examples of wrongful termination exist and his examples include actions by a hypothetical employee in Wisconsin who cannot be terminated under the employee-at-will doctrine if that person refuses to act unlawfully because the employee refuses to lie for their employer, or if that employee was fired because they had jury duty or if that employee had filed for workers compensation.

Certain legal Acts have been created to protect all employees and do influence the employment relationship between an employee and employer. Some of them are: the American Discrimination Act (ADA) of 1990, title VI of the Civil Rights Act, the American with Disabilities Act, the National Labor Relations Act, the Age Discrimination Act and the Family Medical Leave Act and the Uniformed Service Employees and Reemployment Rights Act (Employee Issues, 2010). As a classic example of a violation provided by Olson (2008), Kmart fired an employee unjustly to "avoid paying retirement benefits" which was classified as age discrimination by the Court.

The Sarbanes-Oxley Act of 2002 created protections for any employee if they seek to report fraudulent activities as whistleblowers. With the passing of Sarbanes-Oxley a Company is prohibited from firing an employee for this action. This Act additionally sets forth procedures to follow if there is any difficulty on the job after the act of reporting. The employee can then file a complaint with the DOL within 90 days of any alleged retaliation against the whistleblower. The Sarbanes-Oxley Act additionally provides for levels of monetary fines and jailing penalties as a result of retaliation against a whistleblower or if found to be blocking an investigation as this has now become a criminal act (Paetkau, 2010).

References

Caietti, B. (2010). At Will Employment Means At Will Employment Benefits of a Written At Will Employment Contract. Retrieved from http://www.walterscaietti.com/CM/ArticlesUpdates/ArticlesUpdates15.asp

Employee Issues (2010).Which Employment at Will States Recognize Exceptions? Retrieved from http://employeeissues.com/at_will_states_recognize_excerptions.htm

Foulkes, A.(2007).In Defense of Employment-at-Will. Retrieved from http://mises.org/daily/1821

Olson, A.(2010). Wrongful Discharge: An Exception to the At-Will Employment Doctrine. Retrieved from http://www.employee-advocates.com/PracticeAreas/Employment-Doctrine.asp

Paetkau, T.(2010).Employment Law Considerations Raised by Post-Enron,& Sarbanes-Oxley Act of 2002. Retrieved from http://www.lawmemo.com/articles/sarbanes.htm