Employment-At-Will Doctrine

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27 March 2016

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This paper encompasses what we understand about the Employment-at-will Doctrine and how it’s applied to determine the employer and employee relationship. We examine how exceptions to the doctrine can be applied to questions relating to legality of firing an employee. Determine how we limit liability and impact to operations by creating a collaborative environment empowering employees to feel a part of the overall mission and strategy of the company. Finally, exploring how to create a whistleblowing policy that outlines the process employees can follow to report any wrongdoing and method for resolution.

Summarize the Employment-At-Will Doctrine

Employment-at-will is a doctrine that originated in the early 1900s involving a treatise on master and servant relationship. The main premise of the doctrine is the assumption that the duration of employment is for an indefinite period of time and may be terminated by either the employer or employee. In 1935 the Wagner Act was passed making it illegal to fire employees because they were involved in union activity, and is one of the first laws passed that diminished employment at will. Congress added more laws in the ’60s and ’70s that protected employees from being discharged for certain reasons, mostly related to bias and whistle-blowing.

The doctrine varies in each state with some who have established exceptions to the doctrine to protect the employee. In addition to these exceptions there are federal and state laws that limit the employers ability to terminate employment based upon race, ethnicity, religion, marital or disability and sexual orientation. As we begin to review eight cases involving employment at-will and a COO who must determine whether or not she can legally fire her employees by taking into consideration the following exceptions to the doctrine: a) Employer cannot violate public policy doctrine

b) Employer cannot fire an employee when an implied contract is formed c) Employer cannot fire an employee for refusing to commit illegal acts d) Employer cannot fire an employee for family or medical leave e) Employer cannot fire an employee for implied covenant of good faith

1. John posted a rant on his Facebook page in which he criticized the company’s most important customer. While John has his 1st amendment right for freedom of speech, he did not consider the fact that his rant was in violation of the company Code of Conduct Policy to negatively discuss their customers. John received a letter of reprimand for his actions. If his Facebook rant was made on a company computer Jim would be fired.

2. Jim sent an email to other salespeople protesting a change in commission schedules and bonuses and suggesting everyone boycott the next sales meeting. Although Jim sent this email on his companies system which goes against company email policy, there is no legal reason to fire Jim. Therefore, he received a letter of reprimand for his actions.

3. Ellen started a blog to protest the CEO’s bonus, noting that no one below director has gotten a raise in two (2) years and portraying her bosses as “know-nothings” and “out-of-touch”. Starting blogs to protest goes against the company’s social media policy and defamation of her bosses’ character which goes against the company’s policy. Ellen was fired for “Good Cause”.

4. Bill has been using his company-issued BlackBerry to run his own business on the side. Employees should not make business calls from their personal wireless device except in emergency circumstances. Running his business using the company issued blackberry while on company time goes against the company’s equipment use policy and could be considered a conflict of interest. Therefore, Bill was fired for “Good Cause”.

5. The secretaries in the accounting department decided to dress in black-and-white stripes to protest a memo announcing that the company has installed key logger software on all company computers. There is no legal reason to fire or discipline the secretaries for their attire since it did not cause a disruption within the workplace

6. After being disciplined for criticizing a customer in an email (sent from his personal email account on a company computer), Joe threatens to sue the company for invasion of privacy. Since he was already disciplined for the action, his eluding to suing the company is no grounds for further discipline since he has a right to file a claim if he believes his privacy was invaded. We cannot retaliate against his comment. However, Joe should have no expectation of privacy since he was on a company computer when he opened his personal email account. 7. One of the department supervisors requests your approval to fire his secretary for insubordination. Since the secretary has always received glowing reviews, you call her into your office and determine that she has refused to prepare false expense reports for her boss. Under the employee at-will doctrine exception, an employer cannot fire an employee for refusing to commit illegal acts. There is no legal reason to fire the secretary. 8. Anna’s boss refused to sign her leave request for jury duty and now wants to fire her for being absent without permission. This is a form of public policy which protects employees from retaliation who have simply performed their legal duty to serve on a jury.

There is no legal reason to fire Anna. What action you should take to limit liability and impact on operations; specify which ethical theory best supports your decision. The eight cases we reviewed highlighted the key reasons why we must have policies and processes in place that limit liability and impact operations. Creating a collaborative environment allows employees to address their concerns. In addition, establishing a weekly or monthly team meeting allows employees to provide feedback on items or topics of concern. It also provides a forum to address company policy relating to the use of email, social media, blackberry and the expectation on how an employee should conduct themselves in the workplace. I would also recommend establishing annual training/refresher briefings for the entire team on Code of Business Conduct, Social Media Standards and Personal Use of Company Systems. Deontology Theory can be applied and best represents employees who follow his or her obligations to another individual or society because upholding one’s duty is considered ethically correct.

Take a position on whether or not you would recommend to the Chief Executive Officer (CEO) that the company adopt a whistleblower policy. Support the position. If we adopted the Deontology Theory, we could apply the emphasis on personal responsibility, protection of others and ability to do more than is morally needed. Employees need to feel valued and part of the overall strategy or mission of the organization. One of the key reasons why Congress enacted the Sarbanes-Oxley Act was the behavior of corporate America. Companies like Enron, Tyco and WorldCom accounting fraud led to them filing for bankruptcy and their employees losing their entire life savings. Because of these financial wrongdoings, I would highly recommend adopting a ‘Whistleblower” Policy. Employees need to feel they have a place to go to report improper or illegal conduct without fear of retaliation.

Having an open door policy and good internal process that addresses complaints including a whistleblower protection/anti-retaliation policy can help organizations protect itself from risk of violating state and federal laws. Justify at least three (3) fundamental items that should be included in a whistleblower policy. Provide a rationale for your selection of each of the three (3) recommended items.

As the CEO of a Company striving to adopt a Whistleblower Policy some of the key elements that should be considered when developing the policy are: a) Employee (Persons Covered) – To determine who will be covered by this policy and who will be protected for reporting suspected wrongdoing and/or whose actions should be reported under the policy b) Reporting Complaints Process – To develop a clear channel through which the employee can report any suspected improper or illegal activity and a person whom they can contact and submit the compliant c) Investigation & Resolving Complaints Process – To identify a compliance officer or person to lead the investigation and resolution of all complaints. Determine when and how suspected violations will be documented, tracked, investigated and resolved.

* Muhl, Charles (2001). “The Employment-At-Will Doctrine: Three Major Exceptions,” Monthly Labor Review Outten, Wayne N (2007), “When Good Deeds Are Punished: The Legal Landscape of Retaliation and Whistleblowing,” Litigation and Administrative Practice Course Handbook Series, PLI Order No. 11091 * Sentell, Ed; Robbins, Randall (2008). Journal of Legal, Ethical and Regulatory. Employment at-will. Retrieved from http://www.highbeam.com/doc/1G1-190795487.html * Stone, Katherine V.W. (March 2007). “Revisiting the At-Will
Employment Doctrine: Imposed * Terms, Implied Terms, and the Normative World of the Workplace,” Industrial Law Journal

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