“At Will Is For Penguins”
On Jan 5th, New York Mayor Bill de Blasio signed off on new legislation effectively ending “at-will” employment for fast food restaurants in New York City. This critical event has gone largely unnoticed beyond local howling of affected business owners. The HR world is deliberately quiet. At this juncture of writing, we are sadly obliged to claim yet another “unprecedented” pandemic moment. “Extraordinary” with shades of “miraculous” would perhaps be more definitive tags in lesser times.
With a Democratic controlled government officially grasping the reins of power, we wonder what further “unprecedented” events loom ahead. In this case, workers may have received a pandemic gift that will tip the employment scales in their favour at long last.
One almost feels the need to share this information quietly. Shouting it from the rooftops might invite the “monopoliptic” powers to stomp all over this little informative tidbit. One can imagine a frenzied stampede of bullish fear down Wall Street. (Yep. I did make that word up. But, it works. All puns intended. If you use it, give creds where due.)
Don’t scroll away now! What comes next is worth a digital bookmark.
What exactly is “at-will” work? Basically, a blank check by employers for firing, fear directives and under-cutting employee protections. Currently, it rules all states except Montana. The spin when they sold this to voters was amazing.
In U.S. labor law, “at-will employment” gives an employer the legal freedom, right and ability to dismiss an employee for any reason, (and, no reason) and, without warning. Repeat. Without warning. Very “here today and gone tomorrow”. Great from a zen perspective, but it sucks when the rent comes due.
People voted for this believing it a fair swap for no longer giving a 2 week notice to quit.
Bedazzled by a job offer, the “at will” small print never imprints on the new employee psyche. A couple of weeks into the Nirvana job, doing all those “extra” team supportive tasks, a vague unease sets in. That’s the “at-will” virus creeping in under the keyboard and curling around your throat.
The distracting caveat to this is the phrase; “as long as the reason is not illegal”. Well, my twisted, legal brain embraces that for the dark loophole of nothingness that it truly is. HR is trained in wonderful ways to wield that vague scimitar against any daring to question the corporate status quo.
Employees hired “at will,” should be aware that recourse is almost futile. Courts generally deny claims for loss resulting from an “at will” dismissal. Employers bear little or no liability for your sudden financial ruin. As you stare into the abyss of unemployment, you think, who has the time or, money to challenge this? Samson vs Goliath was a long time ago and slingshots are hard to find these days. As far as a Machiavellian plot goes, this one is tops.
Not me, say you? Never heard of it. Ignorance is bliss until it isn’t. Over 74% of American employees are “at will”. All states in the U.S., excluding Montana, have “at-will” work policies. Some have minor exceptions to the draconian rule. Florida, Alabama, Louisiana, Georgia, Nebraska, Maine, New York, and Rhode Island do not. In Montana, employers can practice at-will employment only during probation.
Theoretically, an employer can’t fire an employee based on “illegal reasons”. These include; discrimination, disability, or retaliation. Enter The Penguins. A waddle of suited, heartless corporate lawyers happily cracking the ice under your “reasons”
There are some exceptions, which again, vary state by state. They include:
• Public sector employment.
Public workers are not typically subject to at-will employment.
• Unionized jobs.
Union workers may have collective bargaining agreements that exempt them from at-will employment.
• Contract based employment.
Contract workers may have a contract with their employer that exempts them.
• Employee refusing to violate public policy.
At-will does not apply when employees refuse to violate public policy or take action that is protected by public policy. The exception does not apply in Alabama, Georgia, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida.
• Employee taking actions protected under public policy.
At-will does not apply when employees take action that is protected by public policy. This includes whistleblowing or reporting of unsafe or illegal activity. The exception does not apply in Alabama, Georgia, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida. (and we all know how whistle blowers are treated)
• Employer implying there is a contract.
In all but 14 states employees may not have at-will status if the employer implies a contract. The 14 states include Arizona, Delaware, Florida, Georgia, Indiana, Louisiana, Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island, Texas, and Virginia. (try proving “implied” against the corporate legal penguins)
• Breach of good faith by employer.
At-will does not apply if there has been a breach of good faith by the employer. For example, firing someone to deny a retirement package. This applies in 11 states. The 11 states include Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah, and Wyoming. (again with the Penguins)
• Employer discrimination.
At-will employment does not apply if an employee is terminated due to discrimination. (Penguins…)
• Employee refusing to do something illegal.
At-will employment does not apply if an employee is terminated for refusing to do something that is illegal. (a huddle of penguins)
• Employer retaliation against union members.
If an employer terminates employees for union activity, at-will employment does not apply. (This one slows the penguins down a bit as you’re not skittering alone on the ice).
All of this mud translates to “dear at will employee, you’re out on your proverbial butt” with a legal iceberg bobbing in front of you. Now your head is spinning and everything feels suddenly–wrong. Especially after that 5-star review and having your face plastered in the break room as employee of the month.
After the crying and mental flailing is over, you think, well, at least there is Unemployment. Sit down my friend. The second iceberg is heading your way. Were you fired, laid-off or just, let go? Try to remember what HR said. Cross your fingers because the WTF penguin strikes again.
Under “at-will” can you collect unemployment? Good question.
The answer depends on the circumstances, your State and any fine print on your contract. Sometimes it rests on whether someone in HR or the boss who just fired you, has a heart. When the unemployment office calls and wants to know if you were “fired”, “quit” or simply “let go”, their answer seals your fate. There are no guarantees, as an at-will employee, you get unemployment benefits. Despite our legal premise of “innocence before guilt” it’s on the employee to prove unemployment came through no fault of their own. (I know, by now you are wondering if penguins are good on the barbecue).
If you felt HR was on your back the past few weeks, they probably were. They lunch with the penguins. If they can’t get you to quit on your own, they need a paper trail of your sudden uselessness as an employee. Remember, if you’re fired, chances for unemployment benefits are slim to zero. That saves HR a few pennies they won’t have to pay out.
Did they give a solid reason for your dismissal? A “just cause”? Legal loopholes include; poor work performance, criminal activity, violating company rules, and harassment of co-workers. Two seem legit, but the other two? Hard to prove or, disprove. An undefined term is the biggest black hole in the legal universe. Again with the penguins.
Should you feel Samson-ish, there are instances where at-will employees can try to sue for wrongful termination. Such as:
• Contracts or agreements, written or implied, replacing at-will employment.
• Breaches of Good Faith and Fair Dealing, for example, an employee is fired to prevent them from earning commission.
• Violations of Public Policy, for example, being fired for requesting time off to vote.
• Discrimination, you feel you were fired due to your race, religion, gender, or other illegal forms of discrimination. (Remembering, you have to prove this).
• Retaliation, for example, you got fired after filing a sexual harassment charge against a co-worker. (Again, can you prove it?)
• Fraud, for example, if an employer made a fraudulent representation of a just cause.
• Defamation, for example, your former employer provided false and malicious references harming your chances of landing that new job. (Repeat after me, can you prove it?)
HR is not only trained on preparing your exit, but has all the penguins on speed dial just in case you go all Samson on them. At Will is designed to make your exit easy and cause very little disruption to their day. “Sit down, so sorry, sign here. Your escort awaits”. They have some common shenanigans for the process that include;
- Termination for behavior.
Behavioural issues are the most common reason for firing employees. They have Tried to try to correct your bad behaviour and documented their efforts. But you just won’t toe that ever-changing line.
• Termination for performance.
Performance goals are another popular reason. You were given the chance to improve, but somehow can’t seem to reach those lofty goals. Maybe it’s just not the right fit for you here. It’s time to let you go to a better place.
• Termination for bad attitude.
Bad attitude. Not a favourite unless it’s teamed up with that behaviour issue. This one they have to work a little harder to prove.
• Termination for insubordination.
This one gets a bit military. Get in line soldier! This is a catch all that includes; refusing to do tasks that are part of a job description, refusing to carry out legitimate directives of management, and being disrespectful towards a manager or supervisor.
• Termination for sexual harassment.
Employers not heeding sexual harassment complaints risk being held liable for hostile work environments. HR is supposed to be on your side here. It took the #MeToo movement to drag this corporate skeleton from the closet.
• Termination for attendance.
This one is sticky especially if you get sick and they are already planning your exit. There are consequences if you simply have a history of continued absences or tardiness. (Not to be confused with “job abandonment”).
• Terminating for bullying.
Workplace bullying, or workplace harassment and unwelcome, hostile behaviour is a solid reason for termination. Oddly, you can’t fire your boss for the same behaviour.
• Termination for safety violations.
The safety violations caveat is not used as much. It’s can back-fire on HR as possible retaliation against the employee. Especially if you, the employee pointed out the problem in the first place.
So all this circles back to New York and Mayor Bill De Blasio signing off on that unprecedented legal boulder he threw at corporate America. Expect lots of screaming from employers and HR on steroids with the speed dialling. There will be pitiful, convoluted explanations on How unfair this is to them and how hard it makes Their job as bosses. But, if you’re an employee, maybe send a thank you note to the man. He is going to need all the help he can get on this one. There are some mega pissed off penguins headed his way..
