Cliff Conversations – a look at the At Will doctrine

Just because you can doesn’t mean you should!

When my sister, Robin, was about five years old, she let my brother stick popcorn kernels up her nose.  When my mom asked Robin why she allowed this to happen, Robin said, “well, him wanted to.” Was this a touching display of sibling love? Not really…it was kinda stupid.

I thought of Robin this morning when a client called to tell me he was going to “fire at will” because “he wanted to.” If you think this would be a valid exercise of his management rights, let me assure you, it is kinda stupid.

Sometimes, my role is to talk people off a cliff, or at the very least, to ensure they know how much it’s going to hurt when they fall off of it. At Will Employmentor rather a Supervisor’s assumption about the doctrine, is the reason for many “cliff” conversations.

Supervisors sometimes think the doctrine/presumption is a “pass card” but I beg to differ.

You see, just like in poker, there are lots of things that could trump even the best of cards. In this context, they are called exceptions. The three most common exceptions are explained below.

Public Policy Exception

This is probably the most widely recognized exception and protects employees from discharge or discipline for a reason prohibited by constitution, statute or other clear public policy.

To illustrate this, when an employee has a reasonable argument that suggests you fired him because he exercised his constitutional rights, or because he sought protection under a law, he can easily trump your “At Will” card with his “Public Policy” card.

Implied Contract Exception

This protects the employee from discharge when an implied contract was made or assumed between an employer and employee, even though no express, written medium regarding the employment relationship exists.

To illustrate, when an employee can reasonably argue she was promised continued employment because of something you said/did or something you didn’t say/do, her “Implied Contract” card trumps your “At Will” card.

Implied Covenant of Good Faith and Fair Dealing Exception

This exception covers every aspect of an employment relationship. It means workplace decisions should meet a “good faith” standard. If they don’t, it is reasonably assumed they were made maliciously, arbitrarily or with bad intent.

To illustrate, when it looks arbitrary, sounds arbitrary, and smells arbitrary, it is not too hard to convince a judge that it was arbitrary. And when this happens, your “At Will” card is trumped with the employee’s “Implied Covenant of Good Faith and Fair Dealing” card.

Please note, these exceptions are not recognized by all of us; many states don’t recognize any of them. However, let’s put the legal exceptions aside. The fact is legislation shouldn’t be the driving force behind sound leadership. We should, on our own, hold ourselves accountable for good and just behavior.

When faced with a performance management problems, we should consider what role we have played in the performance failure. In other words, did we do our job in enabling the desired performance?

  • Did the supervisor clearly communicate the roles/responsibilities to the employee?
  • Did the supervisor clearly communicate the standards expected from the employee?
  • Did the supervisor provide feedback to the employee when performance slipped?
  • Did the supervisor allow the employee to improve?
  • Did the supervisor put reasonable processes in place to allow for improvement?

If a supervisor cannot answer yes to these questions, why should he fire the employee?

Because “him wanted to” is just plain stupid.

  • About the Author

    Heather Kinzie, SHRM-SCP, serves as the Chief Operating Officer for The STRIVE Group. With more than 20 years of organizational and workforce performance experience, Kinzie offers consulting, coaching, content development and training to clients. She oversees a team of experts who utilize a broad, systematic approach to problem solving and consultation.

    Recognizing the critical importance of leadership, communication and effective collaboration among teams, Kinzie is committed to helping clients improve communication, engagement and organizational performance.
     

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