AT-WILL EMPLOYMENT

Written By: Patricia Bagby

Do you know the varieties of circumstances that govern your actions when it comes to managing your work force? There was a time when employers never doubted their ability to hire and fire freely. The hiring process was simple. You hired someone and if the individual did not work out, you fired him or her.

Many employers say they feel overwhelmed by the myriad of workplace regulatory laws governing wages, working conditions, and their employees. You cannot discriminate—or appear to discriminate—based on sex, sex orientation (many states, including California), race or ethnic background, age, national origin, religion, disability, medical condition (many states, including California), or veteran status.

The number of relevant employment laws continues to grow, and the language is sometimes difficult to decipher. That does not mean you have lost your right to hire and fire at will. You must know the potential pitfalls of federal, state, and local governments so that will you will be able to exercise your right to choose whom you think best suited for the job. The emphasis is on preventive action, not defensive action later. To avoid problems, your best bet is to understand the federal laws prohibiting discrimination. Generally, state and local laws duplicate federal laws; and in California, some laws may be more stringent than the federal law. The rule is that the stricter law applies. Exemptions for small firms—usually defined as having fewer that 15 employees—may be on their way out.

Your first challenge is recruitment. It is difficult to conduct effective interviews. Your recruitment process must be bias free and able to withstand a search for discriminatory language or practice.
For example, it is illegal to ask prospective employees about their health, or their age. You cannot even make an educated guess or ask questions that would elicit his or her age, without potentially facing an age discrimination suit.

This is why many companies leave the initial interviewing to the pros—either in-house human resources personnel or outside experts. Even if you meet the candidate only in the final round, you will need to watch what you say, to avoid interpretation as discriminatory. Limit your questions to real-life circumstances at your company and be sure you ask the same questions of all applicants.

At-will employment means that an employer can hire or fire workers at any time, for any reason or no reason at all. However, federal and state regulations have carved out numerous exceptions. You must learn to use the employment laws to your advantage when making business decisions.
Although there is a general presumption that employment relationships are at-will, courts in more than 45 jurisdictions have refused to apply that assumption in recent cases. Be careful when you make decisions and note that few employment relationships are truly at-will.

Patricia Bagby, CEO of PBBD Enterprises, is a highly regarded consultant, trainer, key note speaker
and professional development coach. Ms. Bagby provides practical solutions for all aspects of
human capital management and employment law regulations. E-mail: pat@pbbdenterprises.com.