Thursday, June 6, 2019

An obituary for employment at-will

Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?

Well, Donna, there’s no need to terminate these laws; they are already dead.

I hear it all the time from clients. “Aren’t we an at-will employer? We paid you for that handbook that says so. Why can’t we fire this employee. This is *!%#*!”

Yes, your employees are at-will. And that and a hill of beans will get you sued.

Employment at-will is dead. Do you have the right to fire an employee for no reason? Absolutely. Yet, if that employee is African-American, Other-American, a woman (or a man), pregnant or recently pregnant, suffering from a medical condition (or related to someone with a medical condition, or you think has a medical condition but doesn’t), on a medical leave or returning from a leave, injured, religious, older (i.e., age 40 or above), LGBTQ, serving in the military or a veteran, or a whistleblower or otherwise a complainer, the law protects their employment. Which means that if you fire them, you better have done so for a good reason.

If you look at those categories, most of your employees fall under one of more of them. In other words, while you are an “at-will employer,” that doesn’t really mean anything anymore. Employees just have too many protections.

So, how do I suggest you respond? Follow the Platinum Rule of Employee Relations. Treat your employees as they would want to be treated. If you treat your employees as they would want to be treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would expect to be treated, the jury will be much less likely to find in the employee’s favor.

What does this mean for your poor performing employees? Does they understand the performance problems? Were they given sufficient counseling and warnings before termination? And, most importantly, can you prove it via contemporaneous documentation? If so, there is no reason to give poor performance a pass just because of the risk of a lawsuit. Otherwise? I’d think long and hard before firing.

So let’s all raise a glass and toast employment at-will. It had a good ride.