An equal and mutual relationship - hmmm. Let's see - I can quit any time I want to so I'll set myself up with a new job, get things financially right, cover all my bases and then, with no notice to my employer, I'll quit - cool. My employer can fire me for no reason, any reason, at any time they jolly well please without a thought as to what it will do to me and my family - hmmm that doesn't seem quite equal. Equality and mutuality is accurate - but a legal nicety, not recognized as equal by employees who are the ones that we browbeat regularly about their being employed at will.
I stand by my statement of documentation negating true "at will employment". The reason you document is because there are consiquences if you do not, UI or any number of lawsuits. There for it negates the premise "for any reason at any time". How many of us have terminated someone without giving a reason. WOCO Frank, you do realize that we are talking philosphical terms. I will say that it is good to keep your "at will" statements in place but very few truly follow real "at will employment".
I will say that it is >good to keep your "at will" statements in place but very few truly >follow real "at will employment".
Scott: Please furnish the results of your survey that led you to your conclusions. At Will does not necessarily equate to 'no documentation'. I'm not sure how many people do or don't document. Although I know of many, many companies in my area that do utilize the At Will principle, I know of none who do not document and follow their policies of discipline. These things are not mutually exclusive.
>> I will say that it is good to keep your "at will" statements in place but very few truly follow real "at will employment".
"At will" terminations rise and fall as the labor market tightens and loosens. It's been tight for quite awhile, so we tend to keep "bad fits" on the job longer. It will change.
Don, "at will" laws imply that you do not need a reason for termination, if you do not need a reason to terminate why would you need documentation. However, for our own insecurity we create policies that require us to document. If you are looking strictly from the NY state law, you don't have to show documentation for an "at will" termination. This is why I say that when we as HR professional talk about "at will", we include all the safety buffers we have put in place and are not referring to true "at will employment". Please remember this is a philisophical argument.
Scott: Not to belabor the point, but there are numerous reasons to have documentation to support terminations even when resting on the right of at-will. Just because a business is resting on at-will as a right does not mean that the employer will not have a documentation policy in place, or even perhaps a regimented progressive discipline procedure. The symantics are killing us with this discussion. Even though I value the at-will right, I know of nobody who says willy-nilly, "Hell, fire him, we don't need a reason". Documentation exists for one reason, as far as I know, and that reason is so that it can be pulled and produced upon challenge. Otherwise, it has little or no value. It is a process tool valuable upon review and has nothing to do with the at-will right of the employer. If the at-will defense is a first defense and is not successful, because a protected class claim is made then the documentation is about all there is to save one's ass. I think you and a few others may be making an assumption that people who support at-will shoot from the hip and fire people without a thought process. That is a false assumption.
Everyone seems to be missing the point. I agree "at will" is a good thing and don't think people who follow them, fire from the hip. What I am trying to say is that "at will" still exists but we HR and others know that this is not always accepted by the courts so we document. I think every single one of us documents, it's become second nature to do so. All I am saying is that the original intent of the the law was to allow companies to terminate employment at will. However, because of other regulations and laws, it is not that simple any more. I have never heard of a case that made it to court where documentation was not requested or required. So the concept of "at will" has changed from its original intent.
WOCO Frank, or that I have not communicated properly. This was not intended as an arguement, just a simple observation that the laws parameters have already changed.
[font size="1" color="#FF0000"]LAST EDITED ON 09-24-03 AT 01:32PM (CST)[/font][p]>everyone seems t be missing the point.
That's a pretty broad brush assessment. I'm not missing the point. The point is that At Will is a defense instrument and that's precisely the point...that's the reason some things do not make it to court. Those that 'make it to court' as you say, have claims of protected class status violation or some other law that is alleged to have been violated. Here's a good example of a successful application of the at-will principle Scott: John works for me for awhile and I decide for whatever reason that John is not productive. I tell John that I've thought about things and have decided to let him go and I may even tell him he's not productive, but I may not. John goes down to the EEOC and fills out a piece or two of government paper. Nowhere on the paper does he mention anything about his belief that his race, age, sex, religion, ethnicity or handicap (and a host of others in California and Vermont) had anything to do with his discharge. The government worker tries her best to maneuver him in one of those directions, but John simply says I fired him because in my opinion he wasn't productive but he thinks it might also have been the shoes he wore. The government worker is boxed in and does not have a charge to process and I hear nothing from her. John goes to the corner and finds a hungry lawyer who assesses John's dilemma and all he offers John is a ride to the unemployment office. Maybe I had documentation and maybe I didn't, but as it turns out, I don't need any since no violation of law has been alleged. At Will has worked well and I don't have to fiddle around building a case on John to terminate him. Since I own the company and am rolling in dough, I'm not in the least concerned about my experience rating causing my UI tax rate to go up. I really fired John because of those awful shoes and he's outa my hair now.
Well, Lara from CA, you started quite a discussion. What do you think, and why did you ask the question? Some of us hate doing papers for college courses. : )
I once asked our attorney why the at-will statements when there are so many exceptions to at-will. Our company has never terminated someone based only on that doctrine. Our attorney stated that the at-will was basically, as Don said, a "defense instrument". And usually used to defend claims of implied contracts which we have had because of so many long term employees. In Calfornia the Supreme Court handled down a decision in 2000 that strengthened at-will for those types of claims. The case involved a 49 year old man named Jon Cuz who was laid off after 22 years of employment. He sued for wrongful termination based upon age discrimination, claiming there was an implied contract that he could only be terminated for cause. The Supreme Court found there was no such implied contract and that Guz did not present enough evidence of age discrimination to warrant a trial. In doing this, the Court made it harder for non-union employees to win claims based on implied contracts. Under this decision, where an employer has an express policy of at-will employment, an employee generally cannot claim there was an "implied" contract only to terminate for good cause. Anyway, that's how it was explained to me.
As others have said: At-will is a legal defense, and many (most?) at-will employers also practice progressive discipline and will document significant improvements or declines in employee performance.
Why bother?
Because progressive discipline and documentation can be important in rehabilitating failing performers and creating a workplace in which good management practices create both value and valuable employees.
Some of the same employers will also organize themselves to preserve their at-will status. Why? Because by doing so they will reduce the likelihood of two unpleasant and astonishingly expensive events: 1) explaining their labor practices and details of decisions in the glare of public light, and 2) subordinating their corporate judgment, and wallets, to the collective wisdom of a jury.
By the by, PAhr commented that at-will is a doctrine, not a law. I belive that may be true in Pennsylvania. 'Tain't so everywhere. Hereabouts it is CA Labor Code 2922.
Regards,
Steve Mac
Steve McElfresh, PhD Principal & Founder HR Futures 408.605.1870
I agree with ScottOrr. While I, just like he, document and do not terminate anyone frivolously, "at will" is no longer the same animal it was. 50-60 years ago I wouldn't bother with documentation, I had "any reason or no reason" on my side. That concept has been amended by the laws that rightfully protect certain classes, therefore, we create documention to cover ourselves.
I think he is simply saying if "At Will" was still the same animal, documentation wouldn't be necessary. The fact is, employment is no longer truly "At Will" it is "At Will, beyond the limits of protected status."
Hi blw! At Will has not been amended to protect certain classes - At Will applies across the board, in states that allow for it, to all employees. The documentation comes into play, at least for me, not to 'cover ourselves', but to make sure we are doing all we can for the employee & have allowed them time to realign their actions with the company's direction. This practice is outlined in our Statement of Purpose where we state we will treat all persons with dignity and respect - separate from the At Will doctrine we follow. Also, when we let someone go, we follow At Will, however we provide our documentation to the UI offices or to attorney's - because they require it - we don't when we make our decision to terminate. At Will, in terms of people's understanding of it, has been twisted to encompass policies/procedures/vision statements & not treated like the separate doctrine it is.
Comments
>good to keep your "at will" statements in place but very few truly
>follow real "at will employment".
Scott: Please furnish the results of your survey that led you to your conclusions. At Will does not necessarily equate to 'no documentation'. I'm not sure how many people do or don't document. Although I know of many, many companies in my area that do utilize the At Will principle, I know of none who do not document and follow their policies of discipline. These things are not mutually exclusive.
"At will" terminations rise and fall as the labor market tightens and loosens. It's been tight for quite awhile, so we tend to keep "bad fits" on the job longer. It will change.
On those (rare) occasions when I find that everyone but me is missing the point, it's usually time to rethink my position.
Just an observation.
That's a pretty broad brush assessment. I'm not missing the point. The point is that At Will is a defense instrument and that's precisely the point...that's the reason some things do not make it to court. Those that 'make it to court' as you say, have claims of protected class status violation or some other law that is alleged to have been violated. Here's a good example of a successful application of the at-will principle Scott: John works for me for awhile and I decide for whatever reason that John is not productive. I tell John that I've thought about things and have decided to let him go and I may even tell him he's not productive, but I may not. John goes down to the EEOC and fills out a piece or two of government paper. Nowhere on the paper does he mention anything about his belief that his race, age, sex, religion, ethnicity or handicap (and a host of others in California and Vermont) had anything to do with his discharge. The government worker tries her best to maneuver him in one of those directions, but John simply says I fired him because in my opinion he wasn't productive but he thinks it might also have been the shoes he wore. The government worker is boxed in and does not have a charge to process and I hear nothing from her. John goes to the corner and finds a hungry lawyer who assesses John's dilemma and all he offers John is a ride to the unemployment office. Maybe I had documentation and maybe I didn't, but as it turns out, I don't need any since no violation of law has been alleged. At Will has worked well and I don't have to fiddle around building a case on John to terminate him. Since I own the company and am rolling in dough, I'm not in the least concerned about my experience rating causing my UI tax rate to go up. I really fired John because of those awful shoes and he's outa my hair now.
I once asked our attorney why the at-will statements when there are so many exceptions to at-will. Our company has never terminated someone based only on that doctrine. Our attorney stated that the at-will was basically, as Don said, a "defense instrument". And usually used to defend claims of implied contracts which we have had because of so many long term employees. In Calfornia the Supreme Court handled down a decision in 2000 that strengthened at-will for those types of claims. The case involved a 49 year old man named Jon Cuz who was laid off after 22 years of employment. He sued for wrongful termination based upon age discrimination, claiming there was an implied contract that he could only be terminated for cause. The Supreme Court found there was no such implied contract and that Guz did not present enough evidence of age discrimination to warrant a trial. In doing this, the Court made it harder for non-union employees to win claims based on implied contracts. Under this decision, where an employer has an express policy of at-will employment, an employee generally cannot claim there was an "implied" contract only to terminate for good cause. Anyway, that's how it was explained to me.
Elizabeth
As others have said: At-will is a legal defense, and many (most?) at-will employers also practice progressive discipline and will document significant improvements or declines in employee performance.
Why bother?
Because progressive discipline and documentation can be important in rehabilitating failing performers and creating a workplace in which good management practices create both value and valuable employees.
Some of the same employers will also organize themselves to preserve their at-will status. Why? Because by doing so they will reduce the likelihood of two unpleasant and astonishingly expensive events: 1) explaining their labor practices and details of decisions in the glare of public light, and 2) subordinating their corporate judgment, and wallets, to the collective wisdom of a jury.
By the by, PAhr commented that at-will is a doctrine, not a law. I belive that may be true in Pennsylvania. 'Tain't so everywhere. Hereabouts it is CA Labor Code 2922.
Regards,
Steve Mac
Steve McElfresh, PhD
Principal & Founder
HR Futures
408.605.1870
I think he is simply saying if "At Will" was still the same animal, documentation wouldn't be necessary. The fact is, employment is no longer truly "At Will" it is "At Will, beyond the limits of protected status."
Understood. But unless you've been in HR for 40 years, that's not a change.