Published on October 16th, 2006 by Alan L Sklover
“How come I’m expendable when I ask for a raise,
but indispensable when I ask for a day off?”
IT HAPPENS TO US ALL THE TIME: People come to us for consultations about workplace problems and opportunities from every state in the U.S., and from many other countries, as well. Commonly, the counsel sought is related to job stability, either in seeking new employment or in departing from present employment. This is what they so very often tell us: “I’ve spoken to several attorneys. They’ve all told me that, since I’m an ‘at-will’ employee, there’s really nothing anybody can do to help me.”
It has happened to us so often, we couldn’t count the number of times. It’s hard to believe, but it’s true. And it’s as frustrating as anything else that comes up in my practice of ExecutiveLaw®: smart, educated, sophisticated people, who seek our counsel about problems or opportunities at work, tell us – earnestly but erroneously – the same crazy thing, “I am an ‘at-will’ employee, so my employer can do anything it wants to, and I can’t do much to stop it.” Or, the more succinct but equally incorrect statement, “I’m at-will, so I have no rights.”
It’s as if they were all hypnotized into believing the same mass delusion: that so-called “at-will” employment means there is little they can do to prevent their employment from being terminated, and little they can do if their employment is terminated. It simply is not true, and is simply wrong.
At times it reminds me of one of those old science fiction movies, in which everyone begins acting like robots who can’t think, except for a few people who remain “awake,” who are trying to “awaken” their loved ones from the mass hypnotic state. You remember those movies, don’t you? So many people have come to feel helpless in light of this state of being called “at will” employment, it’s a shame.
The truth is this: over the past 25 years or so, employees (and ex-employees) have greater and greater rights at work. There has been such an erosion of the “at will” doctrine of employment, that the phrase “at will” is becoming almost meaningless unless, that is, you have been made into a “believer.” In truth, the implications of being an “at will” employee are quite limited. All employees, including “at-will” employees, have significant legal rights and negotiating leverage, perhaps more than they’ve ever had before. Even if fired, so-called “at will” employees have increasingly strong negotiating leverage. All that “at will” means is that the employer and employee have not agreed on an end-date for the relation.
When our consultation clients tell us that they are powerless employees because they are “at-will” employees, we privately cringe, and roll our eyes. After our usual two hours or so of consultation with these very same people, they often say, “I feel better than I have for a long time.” That’s because they have been educated in the real state of employment negotiating and law, and they’ve been freed from the mass delusion of alleged “at will” powerlessness.
LESSONS TO LEARN: “At will” employment simply means one thing: “employment without a guaranteed duration.” Just five words. Or it could be defined in five other simple words: “employment without agreed end date.” That’s it. Nothing more. No further implications, and no further complications.
Understand that the notion of “at will” employment did not originate in any law that was ever passed. Nor was it ever “declared” to be “the law of the land” by the U.S. Supreme Court, or any other high tribunal. It is nothing more than a theory, or a doctrine, that has been used, more than anything, to purposefully describe employees as powerless, and thus to make them feel, and act, in that fashion. In fact, many laws passed by our federal Congress, and our state legislatures, and our city councils, over the past 25 years have created vast and varied exceptions and limitations to the so-called “at will” employment doctrine.
And, as time goes on, as employees are given greater rights by law, and greater leverage by opportunities in business life to make themselves valued, “at will” employment means less and less each day. Here’s why:
1. There are more and more “impermissible reasons” upon which an employer may not base the firing of an employee. There are scores, if not hundreds, of reasons “at will” employees cannot be legally fired, including by reason of their age, their gender, their actual disability, their perceived disability, their marital status, their race, their pregnancy, their military status, their sexual orientation, their national origin, their religious beliefs, their HIV status, and their physical appearance, depending on where they live or work. In most states, an employer cannot fire an employee in retaliation for complaining about being treated differently on these and other bases, or for speaking out against financial improprieties. In all states, firing an employee in order to frustrate his or her achievement of pension vesting is a violation of law. Often, courts will simply refuse to allow a firing if it “violates public policy,” a term judges use to describe activities they believe are abhorrent, such as firing a person because the person would not violate a law. All employees, including “at will” employees, have legal rights and negotiating leverage if any reason exists to believe an “impermissible reason” firing has taken place. Just the same as employees with employment contracts that have, as part of those contracts, agreed employment end dates.
2. There are more and more “impermissible circumstances” in which employees cannot be fired. An employer must permit an employee to take time off, for up to 12 weeks, to attend to an illness of their own, or an illness of a loved one, and then give them their job (or an equivalent job) back at the end, under the federal Family Medical Leave Act. It is near-impossible, too, to fire an employee while an employer is investigating his or her claims of harassment, discrimination, hostility, impropriety or retaliation. A firing of a woman who has recently become pregnant or hasa given birth is also quite suspect. Many employers now have “speak out” policies that guarantee that employees won’t be fired if they “speak out” against wrongdoing, and courts have declared these to constitute enforceable employment contracts. So, under a wide variety of circumstances, even “at will” employees cannot be fired.
3. Employees – even so-called “at will” employees – cannot be fired at certain “times.” There are limitations, too, on the timing of firing all employees, and that includes “at will” employees. For example, the federal W.A.R.N. Act requires that employees who are part of a large reduction in workforce at one work location must be given at least 60 days advance notice of termination. The federal E.R.I.S.A. Act views firing an employee just before vesting in retirement or other welfare benefits as suspect, and makes it illegal to do so intentionally. As another example, many employers provide in their employee handbooks that employees accused of poor performance, or petty misconduct, must be given time to improve themselves, in what is commonly called “graduated or progressive discipline.” In this same vein, many companies guarantee their employees the opportunity to file and follow a grievance procedure, and guarantee no firing until it is completed. Each of these so-called “at will” employees have timing on their side.
4. All employees – and that includes so-called “at will” employees – must be provided certain payments, benefits, and entitlements if fired. The “at will” doctrine of employment has absolutely nothing to do with compensation or benefits. All employees have legal protections that require they be paid what they are due in wages, salary, bonuses, commissions and other earned compensation. The federal C.O.B.R.A statute provides that almost all fired workers must be given the right to continue on their employer-provided health insurance plans. Many companies have plans that mandate minimum severance payments for all employees. Almost every terminated employee is entitled to unemployment insurance benefits.
5. Millions of employees may falsely believe they are “at will” employees, but instead have protections of a “fixed-duration” employment contract. Many facts and factors may make you a “committed” employee, instead of an “at-will” one. As examples, if you have been given an “initial hiring letter,” or have been given oral assurances of any kind regarding your job security, or are a member of a union or other bargaining unit, or are protected by civil service rules, or are an educator protected by tenure provisions, or have the benefit of a “graduated discipline policy” at work, or are entitled by company policy to prior notice before firing, then you may not be an “at will” employee, at all. Regardless of how your employer may characterize your employment, as either “at-will” or “contracted,” you may have the legal right to job security, or at the least, job continuation for a period of time. Many more people have the right to continued employment, and entitlements on employment termination, than believe so.
WHAT YOU CAN DO:
1. Don’t be “at will-ish,” that is, don’t be intimidated by anyone telling you that, in employment, “at will” means “powerless.” Bear in mind that the so-called “at-will” doctrine of employment is not all it is cracked up to be, and is weaker in some jurisdictions than it is in others. The worst thing you can do is to allow yourself to believe you are without rights if you don’t have a fixed-duration employment contract. Though the law does not require employers to provide you with a list of your rights and entitlements, you are now “on notice” that you may have many more than you think. Likewise, although employers are not required to provide employees the reason they were chosen for termination or position elimination, no one can believe that names of the “soon-to-be-departed” are randomly picked out of a hat. Instead, there is always a decision-maker, and there is always a reason for the decision-maker’s decision to terminate each individual chosen. That reason may very well be an impermissible one.
2. Understand that many kinds of assurances, statements, policies, and other circumstances may give you a right to remain employed. If any fact, event, circumstance, company policy, employer’s statement, or other factor has suggested to you that you would be entitled to some duration of employment, prior notice of firing, transition period prior to firing, right of appeal before firing becomes effective, make careful note of it, and don’t be afraid to remind your employer of it if notified of imminent firing.
3. If faced with possible job loss, consider a “preemptive” review of your rights with an experienced employment attorney. Employment rights vary from city to city, and state to state. There exist endless rules, regulations and scenarios that provide significant legal and business leverage. For a variety of reasons – although your employer may not be aware of it – you may have a legal right to continued employment, or at least a persuasive argument for that. That is, you may not be an “at-will” employee, and even if you are an “at-will” employee, you may have rights to remain an employee. But legal counsel needs to be imaginative, creative and aggressive in analysis.
4. Don’t sign or do anything that may result in loss of workplace rights without consulting an experienced employment attorney. Employees who consider themselves to be “at-will” often feel powerless, and believe that insisting upon fair and legal treatment may be futile. For this reason, they foolishly sign releases, acknowledgements, confirmations, agreements and other documents that falsely “confirm” that they have no rights or claims, or by signing such documents, they forever give up the many rights and claims they have. Remember that you may be asked or even urged to sign something without prior legal review, but no one can force you to do so.
The “at-will” doctrine of employment is touted by employers as giving them the right to do anything to their employees, under any circumstances, at any times, with impunity, for any reason or no reason. Nothing could be further from the truth. Only if you accept that illusion, or delusion, do you let it become true. In this, the greatest mistake you can make is to accept what you have been told about “at-will” employment, and thus become your own worst enemy.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Avoiding unnecessary risks to your job, your finances and your reputation, is essential. But it takes more than luck to make that happen. It takes forethought, care and prudence, the essential ingredients in good negotiating.
Always be proactive. Always be creative. Always be persistent. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “reward” and eliminate or reduce employment “risk.” That’s what SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.