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Tell Your Employees Their Employment is at Will

July 1, 2002
Related Topics: Staffing and the Law, Featured Article

I serve at the pleasure of the President."

What a great line. It was spoken by the character Josh Lyman on an episode ofthe television series, "The West Wing." And as Diane, my astute associatepointed out; it’s a perfect example of employment at will. That phrase is notnew. In fact, employment at will has been around and recognized since 1983. Butthere are still people who have trouble with that concept.

For years, at will has been a part of the everyday business language,particularly with jobs not covered by a collective bargaining agreement. It’son application forms (the good ones) and included in employee manuals orhandbooks. The best manuals include a statement that nothing, from theclassified ad, the job description, the job posting, or the offer letter, isintended to be an employment contract. Some even go so far as to describe whatwould be considered a contract, usually along the lines that only the presidentor CEO has the authority to enter into such an agreement. Managers are trainednot to use expressions like "you’ll always have a job here" or "Whatwould we do without you? I could never fire you."

Where I work, it’s on the job application, the receipt for the employeehandbook, and in the handbook itself. Yet even as recently as last year, I hadto explain it to an employee more than once.

This employee worked less than sixty days. From the second day on the job,she began to exhibit signs that her employment may not be long-term. Shequestioned her duties, arguing with her manager, and spending more time writinge-mails than anything else. When she interviewed for the position, she was givena copy of the posting, which thoroughly described the position. By the end ofthe first week, she was meeting with the head of the department and reviewingthe position again. The manager and the department head tried to give her thebenefit of the doubt. After weeks of struggling, they called me in.

Rather than waste more time and money trying to train the individual in a jobshe either no longer wanted or could not do, we decided to exercise our rightsas an employer at will. We had a brief meeting, recovered the company property,and that was it. Or so I thought.

Three weeks later, the CEO gets a certified letter, asking to meet with himabout the discharge. She was also demanding severance pay and continuation ofall benefits while she looked for work. We reviewed the case and agreed with ouroriginal decision. He requested I draft a response, restating our decision toend her employment. The letter went in the mail, again pointing out the employerat will status. End of story. Or so I thought.

Two weeks later, another letter. This one was the size of a small magazine,with various documents to support her case, repeating her demand for severancepay. So we drafted another response and sent it on its way. You can guess whathappened next.

The third letter threatened legal action if we didn’t come across with thecash and a meeting with the CEO. He rolled his eyes at me and we sent what wehoped was the last response. The ironic part was that this person had not putthis much effort into the position when they were working. I waited for the nextround.

We ended up in small claims court, in front of a very busy judge. He didn’twant to hear about ideas, misconceptions or opinions. He was Dragnet’s JoeFriday. "Just the facts." I handed over copies of the application andemployee handbook where she had signed, indicating that the organization is anemployer at will. He read it, and then asked her if she understood what itmeant. When she answered yes, he nodded and said his decision would be in themail.

The final results? After three different letters and a court appearance, shewound up with absolutely nothing.

At will employment means it can end at anytime. Either party can end it, withor without prior notice. Most states recognize employment at will, provided atermination does not violate state or federal laws, such as those relating todiscrimination. While at will is not to be taken lightly, it’s certainly notsomething to be ignored. Yet even today, after almost twenty years, many peoplestill don’t understand the concept.

I can’t tell you how many times candidates have skimmed over anapplication, failing to read or comprehend the paragraphs those employers socarefully include. These same candidates, if hired, are so excited at theprospect of a new job that they again fail to read or comprehend similarparagraphs during orientation.

Sharp managers will mention at will verbally during the orientation process.Because educating the employees in all aspects of the business, including statusas an employer at will, is a never-ending process.

"I serve at the pleasure of the President."

What a great line.

Workforce Online, July 2002 -- Register Now!

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