Ethical and Legal Issues Concerning At-Will Employment - Research Paper Example

?ETHICAL AND LEGAL ISSUES CONCERNING AT-WILL EMPLOYMENT Employment-at-will “gives employers broad discretion to fire employees ‘for a good reason, a bad reason, or no reason at all,” (Denton and Boyd 1990). Advocates of this mode of employment see it as a means of managerial efficiency and flexibility, and a motivation to employees to put more effort under competitive situations similar to private sectors. This view may seem appealing in this day and age of fiscal conservatism and budgetary deficits, but to a large extent they ignore legal, political and managerial factors that are part of the bigger picture of employment. Employment at will has an ethical relation to; legal issues on employment, public trust and ethics. Employers should be careful at every stage of the hiring process to avoid illegal discrimination of any applicant on grounds of color, gender, age, national origin, disability and religion. Applicants are aware that indication of bias in the hiring process may lead to severe legal repercussions. In contractual employment, the law considers the relationship between an employer and employee as being on equal ground in terms of bargaining power. The employment at will reflects the belief that people are free to enter into employment contracts of specified length of time, without obligations attached to either employee or employer. In this arrangement employees are able to resign from a position they no longer care about and employers are permitted to discharge employees at their pleasure. The law in general presumes one is employed at will unless they have proof indicating otherwise. Written documents detailing one’s employment or oral statements from their employer are means of proof. For this reason, employers go to pains to point out, in applications, handbooks, job evaluations, handbooks, or other documents related to employment, that their employees work at will. It is important to be aware of the status of one’s employment, whether it is at will or otherwise. Ethically, the employer could expressly indicate the terms in a written document that the applicant has the choice to sign. If no at-will agreement is signed, one can check the employee manual or any other written workplace policy document. If these documents state ; that one could be fired at any time, could be fired without cause or for any reason, even if the word at will is not expressly used then you are under an at-will policy. Professional ethics encourage the employer to have some written policies that call for good reason to fire. Such policies could provide an exclusive list of reasons for which employees can be fired or offer some job protections. Employees are entitled to rely on these kinds of policies if their employer has adopted them. Legally if the contract promises job security, then one is not an at will employee. This could be in form of a contract that clearly states that the employee is on a three-year contract and they could be fired in that time only for committing a crime. If in this event they are fired for any other reason not specified in their contract they may have legal claim for breach of contract. Employers often take this employment means as a measure of protecting their interests. With uncertain economic systems and means of sustenance companies feel the need to cushion themselves or have some weather room in the event of downsizing. In other instances, the employee may need an employee for particular tasks which may be for specific durations. In case the task is completed before the expiry of the contract the employee may feel the need to let go of the extra hands. It is unethical in the public for an employee to hire with the sole intention of covering their back. The result is that the new hires, will not be motivated or feel challenged in the work and may underperform. In a clear situation where the employee and employer both know the terms of the agreement, the law has little to do in case either party bailed out. Ethics encourage serving a notification to the other party. On the part of the employee, they could give leave of notice to the employer to allow them time find a replacement. Employers on the other hand could notify the employee about their termination. Since the agreement takes the two parties on an equal footing and as such allow them to make the decisions at whim, neither party is obliged to do provide notice. On one hand, when it is absolutely necessary for the employer to dismiss an employee under at will agreement and they actually go ahead, they may take initiative to make some amends. An employer could give a severance package to the employee as a means of compensation. Additionally they can provide positive feedback, recommendations and even placement for the employee. However, they are not bound by law to do this. It could be out of the relation that they have enjoyed with their member of staff. On the other hand, the employee who bails out of their current position of employment has an equal chance of making some amends. Besides a leave of notice with reasonable time duration, they could volunteer their services to the employer for duration of their choice. It is important to note that they are not bound to this by any legal requirement and that it is absolutely their choice. In fact this scenario is ideally where the working relationship was healthy and both parties enjoyed the input and output into the common objectives. All parties, the employer and employee, should have full knowledge when signing any written document indicating the nature of the employment (Pozgar 2001). Virtually every court treats a signed at-will contract as a final word on the subject, no matter of the implied promises. All spoken statements are only binding when put down in writing. At will employment undeniably has its advantages. For instance, an employer or employee can terminate the agreement at any time for any reason however flimsy, except an illegal one, without taking any legal liability. This arrangement can be made when the hiring is on temporary basis or as a means or trial period. This gives the chance to develop a healthy working relationship between the employer and employee without any commitments. It may serve as an introductory training and both parties can gauge how accommodating and how willing the other party is. Where professional standards are adhered to, at will employment is a fair subject. The employer may explicitly adopt a set of rules to govern their relationship with the employee. These as mentioned earlier might be in the form of having some job security provision for the employer in the employment at will contract. The agreement is advantageous for the employer who wishes to terminate a poorly performing employee. Ethics and professionalism for both the employer and employee are vital and it involves being skillful and interacting with people from diverse backgrounds and all walks of life. Legislative action has been necessary because of the employee backlash over possible grounds for unfair termination. States have provided some safeguards for at-will employees. Law makers in these states have carved out exceptions to the presumption of an at-will contract, which have some harsh consequences. There are instances when an employee is fired by a manager in retribution. This is expressly not a professional standard since the employer and employee are basically working under a covenant of good faith. Hence some laws to regulate the labor hiring and firing. There are three main common law exceptions in the at will agreement; public policy, implied contract and implied covenant of good faith. However, the at-will presumption holds a lot of weight and it can be difficult for an employee to give evidence that their circumstances are within one of the exceptions. Further, not all jurisdictions recognize all the exceptions. These exceptions principally focus on terminations. The exceptions realize that terminations comply with at will employment statues, but the there are instances that, terminations, do not seem just. Public policy is the most widespread exception and it primarily averts termination from employment for reasons that contravene a State’s public policy. Employees are protected against adverse employment actions that go against the public interest. State’s and laws that recognize this policy vary significantly in how narrowly or broadly it is construed. Majority of laws accept public policy expressly stated in statues and constitutions. There are a few laws that allow additional sources of public policy, and may include professional codes of ethics, administrative rules and regulations and wider notions of civic duty and public conduct. A practical instance of a public policy is where an employee may refuse to perform activities that an act of law prohibits. Case in point an employee could decline an employer’s request to commit perjury at a trial. Additionally; an employee could report a violation of the law, exercise a statutory right or engage in acts that are in public interest. These instances are considered public policy and the employer is bound by law to not act in retribution. In the event of a violation the employee has legal claim against the employer. Implied contract exception in at will employment is also widely recognized. It holds when an implied contract has been established. The implied law contract may be difficult for the aggrieved party to prove. Employers’ representations of continued employment, in the form of expectations created by policies, handbooks or other written assurances by the employer are some of the implied contract agreements. In addition, oral assurances by an employer representative, for example, “We need performance oriented people in this organization, you have a job here”, may serve the implied contract. Thus, albeit no written contract between the individual employee and an employer, the former may have the expectation of fixed term or indefinite employment based on the statements of the latter, practice of firing employees for good reason, or an assertion in the work policy documents that specific procedures will be followed during termination. There are laws that recognize fair dealing and covenant of good faith in employment situations. It is interpreted in several ways, to mean that dismissals must be just and with cause. This exception seeks to cushion employees from being dismissed with malice intended or in bad faith. In this exception, implied covenant of good faith, the employer must provide valid methods and grounds for discharging an employee. The covenant of good faith does not seek to unduly restrict employers but merely make a provision for some balance of power. Traditional covenant of good faith totally subordinates an employee’s interest to employers’ interests. It has been a well accepted principle supported by the common law that an employee hired for an indefinite period time period without a written employment contract could be terminated without restriction. The law indicated employers “may terminate their employees at-will… for no cause, for good cause, or even for cause morally wrong and be without guilt of legal wrong.” This effectively meant that employees could equally quit for any reason and at any time. Ethics have at most times taken the limelight in passing judgment in courts of law. With the traditional acceptance of the at will employment terms, all ethics in human relation and mutual existence had been ignored. The employment at will agreement has in the recent past been under heavy assault from lobby groups, activists, and labor unions. They have called for regulations to the freedom given to employers by the piece of legislation. Their demands have been met with some concern and the courts have actually given an ear to the demands of these groups. Judges presiding over a majority of cases where employees claim “unjust” dismissal have ruled in favor of the employee, forcing companies to pay damages or rehire. Employers feel that despite the emotional intent of preventing employer “unjustness” there are strong reasons to fully restore the “employment-at-will” principles. Proponents, employers, of more flexible laws on labor, on one hand can reference their own night mares, such as where they have been forced to rehire employees who they have dismissed with good reason. While, on the other hand, opponents of the at will principle powerfully stand to defend employee’s “individual right to freedom” and privacy from oppressive employers. In this day and age employers must be very cautious when they intend to end an employment relationship for bad cause, good cause or most importantly for no cause at all. The real situation is that even the largest firms that employ, with hundreds or thousands of employees, have to downsize at one point or the other. These companies face genuine threats of bankruptcy, failure and relentless competition- inclusive of competition for quality workers. The companies are also subject to whims of the real power sources in consumers, market economy who by their decisions personalize the business and hold a lifeline to survival in the market. References Denton, D.K. & Boyd, D. (1990). Employee complaint handling: Tested techniques for human resources management. Westport: Quorum Books. Charles, J.M. The Employment-at-will doctrine: three major exceptions. Available from http://www.bls.gov/opub/mlr/2001/01/art1full.pdf Jennings,M.(2005). Business: It’s Legal, ethical and global environment. St. Louis: South Western Pub. Marianne,.M.(2008). Foundations of the legal environment of business. St. Louis: South-Western Pub. Pozgar, D.G. (2001). Legal and ethical issues for health Professionals. Boston: Jones & Bartlett Publishers. Towsley-Cook,D.M and Young, A.T. (2007). Ethical and legal issues for imaging professionals CRM: From Technology to knowledge. New York: Mosby. Wilconxon,A., Remley, T.,Gladding,S. and Huber,C. (2007). Ethical, legal and professional issues in the practice of . New York: Prentice Hall. Read More