At-Will Employment and the Law Essay

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At-Will Employment




The at-will doctrine has its negatives and its positives. The positive for the at-will employee is that it puts no contractual obligation between employee and employer. Either is free to quit the relationship at any time: the employee may quit, or the employer may fire the employee without notice or having to supply a reason. Of course, like with any rule there are exceptions; for instance, any employer cannot fire an employee for reasons of race, creed, ethnicity, etc. And recent interpretations of the National Labor Relations Act by the National Labor Relations Board have essentially seen to it that employers may not fire employees because of criticisms made by the employee of the workplace via social media (Riddle, 2016; Cavico, Mujtaba, Muffler, Samuel, 2013). The negative side of the at-will doctrine is that it can impair or limit employer-employee relationships. It inspires little loyalty in the sense of a long-term-relationship; both employer and employee are oriented towards what they themselves gain from the relationship instead of how they are working together as a team towards a mutual goal. As Arnow-Richman (2011) notes, "today's employer's operate principally in an external labor market in which implicit promises of long-term employment have been replaced by implicit promises of long-term employability" (p. 1). Nonetheless, the at-will doctrine places no obligations on either party; either is free to end it at-will; and in a workplace world where this is no obligation, relationships can quickly deteriorate and, in fact, do -- as the cases below signify.

Three Cases




First, there is John, who posted a rant on his Facebook page in which he criticized the company's most important customer. While this is an unwise move by John and will not win him any friends in management, it is questionable about whether or not he can be fired. As Cavico et al. (2013) note, social media is an outlet of free speech, and as Riddle (2016) observes, the National Labor Relations Board has viewed social media criticism of a person's workplace as fair and not a condition that justifies firing an employee -- in other words, it cannot be used to terminate an at-will employment.

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However, in John's case, he did not criticize the company but rather the company's client. This opens the incident to an all new interpretation -- and it could therefore be seen as grounds for releasing John. Thus, John could be legally fired. However, to limit liability and impact on operations, the ethical theory approach to use here could be the Utilitarian approach -- John's behavior is scandalous to customers; therefore, he must go. At the same time, out of respect for John's free speech on social media, one could take a transformational leadership approach, retain John, correct him, and coach him to be a better employee who does not criticize customers no matter their deficiencies. This is an alternative that could really limit liability should John choose to sue over wrongful termination.



Ellen on the other hand is not one who can be fired. She is criticizing the company directly on a blog, which is a social media type of outlet. According to the National Labor Relations Board, such postings are not legally grounds for termination. In fact, were Ellen to be fired, she could sue or seek compensation for wrongful termination. The fact that the company has no whistleblower policy in place would only serve to strengthen her argument -- as she feels that she is blowing the whistle publicly via social media as there is no internal alternative within the company to bring up problems within the hierarchy. Ellen therefore should….....

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References


Arnow-Richman, R. (2011). Just notice: re-reforming employment at will. UCLA Law

Review, 58(1): 1-13.

Cavico, F., Mujtaba, B., Muffler, S., Samuel, M. (2013). Social media and employment-

at-will: tort law and practical considerations for employees, managers and organizations. New Media and Mass Communication, 11: 25-41.

Department of Homeland Security v. Maclean. (2014). IIT Chicago-Kent College of Law. Retrieved from https://www.oyez.org/cases/2014/13-894

Policy and Program Report: Labor and Employment. (2016). Nevada Legislative

Council Bureau. Retrieved from https://www.leg.state.nv.us/Division/Research/Publications/Pandpreport/02-LE.pdf

Riddle, B. (2016). Employment at will comes with many exceptions in Kentucky.

The National Law Review. Retrieved from http://www.natlawreview.com/article/employment-will-comes-many-exceptions-kentucky

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