Generally, it's in the interest of American business to maintain, wherever possible, an "at-will" employment relationship. In certain circumstances, however, contracts of employment have been used to preserve and maintain relationships with key employees. Y2K requires no different analysis.
A recent news report points out the problem. In November 1998, Louis Gutierrez left his post as the Commonwealth of Massachusetts' chief information technology officer to take a similar job at the Federal Reserve Bank. ("State's Top Y2K Expert Leaves for Federal Post," Boston Business Journal, November 20-26, 1998). For the previous two years, his chief responsibility had been to ensure that the state's computer systems would be able to withstand the coming of the Millennium. "Louis' leaving is a major challenge for all of us because he's got an enormous amount of information in his head about this issue," said the co-chairman of the legislature's Science and Technology Committee, "I think it's a real problem, but not an insurmountable one. He's willing to continue to be available to us when he's needed."
But what if such a key employee isn't readily available, for a variety of easily imaginable reasons? What could have been done to avoid the untimely departure and what contingent planning should have been in place? Most private employers can be expected to be less sanguine than the Commonwealth of Massachusetts.
Examine your company's definition of "key employees." In the context of the aftermath of Y2K, a new group of employees may become invaluable. Certainly, the first review should be of those employees involved in the information-systems function. It's probable that virtually all IT employees, regardless of experience and actual knowledge, will be "in play" as companies rush to find a quick fix to new problems. Some organizations, following the model popularized by the Federal Bureau of Investigation, will undoubtedly seek to assign hundreds of "agents" to the "investigation." Contracts of employment, with reasonable non-competition agreements and early-termination disincentives, may be invaluable.
Beyond the IT function, however, other employees may become critical to continued operations. Review the core business systems to attempt to identify which employees may be invaluable in a nontraditional business operation and secure their continuity of employment.
Furthermore, the effects of the Millennium Bug will first be felt during a holiday unique in our lifetime. Most people will have special plans for celebration. Accordingly, some of the key people most needed may be vacationing and celebrating in distant places at a time when conventional means of communication may be threatened. A contingency plan for staffing the company's facilities and operations might be best.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.