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Tag: Department of Labor

Posted on November 22, 2016June 29, 2023

Dropping Some Wage and Hour Wisdom on Turkey Giveaways

Jon Hyman The Practical Employer

One law firm for which I used to work provided each staff member an annual Thanksgiving turkey as a holiday thank you to its employees. With the hindsight of two decades of employment-law experience, here’s my question — should the fair market value of that turkey been included in the employees’ regular rate of pay? Because if it was, the company would have to include its value in the calculation of employees’ overtime rates.

Thankfully, the FLSA excludes such gifts from the regular rate of pay. Employers, your Thanksgiving turkeys and supermarket gift cards are safe from the clutches of the DOL’s Wage and Hour Division.

Under the FLSA, “regular rate” does not include “sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency.”

To qualify under this exclusion, “the bonus must be actually a gift or in the nature of a gift. If it is measured by hours worked, production, or efficiency, the payment is geared to wages and hours during the bonus period and is no longer to be considered as in the nature of a gift.”

The DOL gives this example:

If the bonus paid at Christmas or on other special occasion is a gift or in the nature of a gift, it may be excluded from the regular rate under section 7(e)(1) even though it is paid with regularity so that the employees are led to expect it and even though the amounts paid to different employees or groups of employees vary with the amount of the salary or regular hourly rate of such employees or according to their length of service with the firm so long as the amounts are not measured by or directly dependent upon hours worked, production, or efficiency.

So, what does one have to establish such that a turkey or other holiday gift is excluded from the regular rate calculation?

  1. It is a discretionary gift.
  2. Its value is not measured by hours worked, production achieved, or efficiency attained.
  3. It can be provided with sufficient regularity such that employees expect it (i.e., an annual tradition), provided that it remains discretionary and not tied to hours worked, production, or efficiency.

I’m off the rest of the week to enjoy my turkey and fixings with my family. I hope you enjoy yours too. And, I hope you take you at least a few moments to reflect on that which you are thankful. So often we get bogged down in the everyday, which can prove to be both negative and mundane. One of the reasons I love Thanksgiving so much (other than my mother-in-law’s turkey) is because it gives you the chance to stop and reflect on all of the good that you have in your life. And we each have a lot of it.

Cheers.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on September 1, 1997June 29, 2023

Interview with U.S. Secretary of Labor Alexis Herman

More than 100 years ago, the first Labor Day was established in New York City. That was on September 5, 1882. Now Labor Day is a national holiday, and as the United States once again pays tribute to the American worker, human resources professionals can join the legion of employers, unions and government officials in celebrating the evolution of today’s dynamic workplace.

Among those top government officials is Alexis M. Herman, 49, the nation’s 23rd U.S. Secretary of Labor, appointed by President Bill Clinton and confirmed by the Senate in April with an 85 to 3 vote. She succeeds Robert B. Reich who resigned last year for personal reasons.

As secretary of labor, Herman will enforce U.S. labor laws and regulate workplace activities as required by laws. Her duties fall under the U.S. Department of Labor’s mission, which is to “foster, promote and develop the welfare of the wage earners of the United States, to improve their working conditions and their opportunities for profitable employment.”

As a Cabinet member, the secretary of labor also counsels the president on American workplace policies. Herman also is a member of more than 30 councils, committees and boards, such as the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry. Some of the principal laws the secretary administers include: the Job Training Partnership Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, Unemployment Insurance and the Consumer Credit Protection Act.

After her first 100 days in office, Herman recently gave Workforce an exclusive interview. She survived a tough confirmation process that took several months (see the end of this article for information on how to obtain fax material describing Herman’s confirmation hearings) and has since drafted a game plan that reveals her commitment to creating partnerships between management and labor, ensuring the rights of women and minorities, and furthering the competency and skill level of America’s workforce. Described as unusually pro-business for a labor secretary in a Democratic administration, she prides herself in building bridges to Corporate America since her days as a management consultant and a liaison with company executives for the White House.

As human resources leaders ponder the future of labor-management relations and the workforce in general, Herman’s forward-thinking agenda is reassuring. Below are her comments:

Q: Now that you’ve been confirmed as U.S. Secretary of Labor, what do you consider the key elements of your agenda-and why?
A: In my testimony before the Senate, before my confirmation, and at every opportunity since then, I’ve presented my five goals for the Labor Department. First, we must equip every working American with the skills to find and hold a good job with a rising income throughout his or her life. Our economy is part of an ultracompetitive, and often unforgiving, global marketplace. In this economy, the workers who succeed are going to be those who are able to improve their skills throughout their careers.

My second goal is to help people move from welfare to work. I understand with all my heart that fulfilling work and a decent paycheck are the two most direct paths to human dignity. But it will take a profound depth of commitment to learn what skills employers are looking for, to equip welfare recipients with those skills and then to convince employers to hire them.Alexis Herman

Third, I want to assure that working Americans are secure when, as labor leader Walter Reuther used to say, they’re “too old to work and too young to die.” Our department’s responsibility to working Americans doesn’t end when they retire. We must safeguard private pension funds and encourage workers to save on their own for retirement.

Fourth, we in the Department of Labor will guarantee every working American a safe and healthy workplace, with the rights and respect he or she deserves-and with equal opportunity for all. If an employer’s practices threaten workers’ safety and health, if an employer discriminates on the basis of gender, race or disability, or if the company deprives workers of fair wages, then tough enforcement is necessary. But our ultimate goal is compliance with employment laws, not punishment for its own sake.

My fifth and final goal is to help working people balance work and family because Americans must be able to succeed at home as well as on the job. Companies with policies that support families find it’s simply good business and good family values.

Q: What do you anticipate will be the greatest obstacle to finding common ground between business and labor? What assets will help you achieve success?
A: [As a society,] we’re still trying to form that “more perfect union,” both in our nation and in our workplaces. I believe it’s possible for this country to move toward a remarkable era of broadly shared prosperity. But first, we must begin by facing-seriously and realistically-the issues that continue to tear us apart. We must begin, through honest and constructive dialogue, to work through the issues that divide us, whether it’s fair pay, safe and healthy working conditions, moving from welfare to work-and, yes, racism and sexism.

As a black woman who was born and raised in the South, I easily could have become bitter. But in fact, I’ve been blessed, because I have always focused on the positive. I refuse to buy into stereotypes, and my experiences with bad people are completely outweighed by those who are good.

Q: Given your previous experience managing HR in the private sector, what would you say are some of today’s key human resources issues?
A: Number one is that skills matter. Evidence suggests that Americans with inadequate training and education and no technological expertise will face declining wages or unemployment. As the pace of technological change continues to accelerate, many more low-skilled or unskilled workers in the United States will be displaced by more sophisticated technology or confined to an ever-diminishing part of the job market. For those who maintain their skills, the changes are likely to bring rewards.

We must begin, through honest and constructive dialogue, to work through the issues that divide us.

Second, Americans are getting older. Baby boomers who have prepared well for their retirements may be in a good position to retire. But what about everyone else? This is of particular concern to women who outlive men and are less likely to be covered by pensions. Sixty percent of all working women have no pension coverage. That’s a figure we need to increase.

Third, America is becoming more culturally diverse every day. This offers enormous potential for more creative and innovative workplaces.

Q: What were your greatest lessons from your previous HR experience?
A: President Clinton often has said that this country doesn’t have a person to waste. And I believe that the same thing is true of companies. In the 1980s, I spent most of my time advising companies on how to create a climate of understanding so those hired would stay on and succeed in their corporate cultures.

This is far from being an altruistic notion. It’s a bottom-line issue. I know from experience that corporate success is maximized only when every worker at every level is enlisted as a partner in the effort to achieve top performance. The benefits of using the talents of every employee rebound not just to the employees, but also to the companies themselves.

Q: What kinds of labor-management trends are shaping the workforce of tomorrow?
A: I think any time we see true labor-management cooperation, we’ll see innovation. I want to particularly recognize and congratulate the Service Employees International Union and other AFL-CIO unions at Kaiser Permanente for endorsing a landmark partnership to review national business strategies on issues affecting the quality of health care. It’s an important breakthrough on one of the nation’s toughest issues.

The Communications Workers of America, to use another example, is doing some great work with U S West, along with the Labor Department, to provide continuing education and skills development for the workers at the company. Its Pathways program, which provides tuition reimbursement, career planning assistance and skills assessment, is a perfect example of the kind of partnership that’s possible between labor, business-and in this case-government. It’s one I hope will be duplicated by other companies and other industries.

Q: How do you think HR leaders can become more strategic partners in their companies?
A: My advice would be to base their recommendations on the best available information. They need to acknowledge that technology and human capital aren’t substitutes but complements. They must help companies and workers prepare for change through the use of technology, transition planning and training. They also need to help companies think about how to creatively recruit and retain workers by adopting nontraditional working arrangements and family-friendly practices. To do this they should learn what the best companies, even their competitors, are doing and learn from their successes and their failures.

Q: Which HR functions do you believe are taking on greater importance as we move toward the 21st century?
A: If I were a human resources manager, I’d give attention to several areas. Among them:

Training and development: For a number of years now, we’ve heard it said, and have said repeatedly, that no longer should a worker expect to begin and end his or her career with the same employer. As the workforce continues to change, employees should possess the necessary basic skills that will allow for lifelong learning to meet the demands of a shifting job market.

Recruitment and staffing: Particularly in an era of change and restructuring in both the workforce and the workplace, achieving a goal of hiring and retaining the best workers will be a real challenge.

Flexibility/work and family: Although alternative work schedules-flextime, part-time, job sharing, compressed workweeks and telecommuting-were originally designed to help working mothers balance work and family, recent surveys and some actual experiences show that more men are interested in and using these provisions than previously thought. Also, the issue of child care has been joined by that of elder care, especially as many baby boomers are now expressing concerns relating to the care of parents and other relatives.

Pay and benefits: The question of pay equity must be appropriately addressed as a fairness issue that particularly affects women and minorities in the workplace. Several states and some companies are evaluating jobs as a way of determining fair pay for all employees, irrespective of gender and race.

Retirement planning: Never has it been more important nor have there been so many options available to prepare for retirement. We in the department will continue to do everything possible to safeguard pension funds, while smart employers will find new and more effective ways of encouraging workers to save for retirement.

Workforce diversity and discrimination: Although affirmative action is repeatedly coming under fire, there’s still a great need to address this issue in terms of discrimination faced by women and minorities. We know from the calls and letters we get at the department that sexual harassment, pregnancy discrimination and other forms of disrespect on the job are still a problem for many.

Q: Where have you seen innovations between the private and public sector in terms of job training?
A: The National Skills Standards Board is a good example. This unique organization was created by Congress in 1994 with bipartisan support and is composed of leaders of business, education, labor and community affairs. It’s charged with encouraging a business-led effort to develop a voluntary, national system that spells out skill requirements across broad economic sectors. The board’s work is helping business specify the knowledge, skills and abilities a worker should have to get and keep a job, and it’s helping workers make sound decisions about training.

In addition in the Department of Labor, we’re in the second year of a demonstration program to help train out-of-school youths in some of the nation’s poorest communities. Grantees work with public and private organizations in the broader community, such as schools, community colleges, community-based organizations, private-sector employers and the judicial system, to reduce the high school dropout rate in the area and to provide mentoring support, leadership development and other services that young people need to start career paths with earnings sufficient to support a family.

These are just two of many examples.

Q: What do you think it’s going to take to close the wage gap between women and minorities and their white male counterparts?
A: The good news is that the economy has created more than 12 million new jobs during the past four years, most of which have paid higher wages than the average for all jobs combined. But, unfortunately, the employment and wage gap between minorities and others didn’t narrow much. There are several reasons for this.

First, not enough minority youths entered and completed remedial job training programs. And not enough of those who completed high school and skills-training programs entered better-than-average paying jobs, many of which were located in areas not easily accessible to minority youths. And sadly, on the eve of a new century, race and gender discrimination continue to block equal opportunity for minorities to get into better paying jobs.

In addition to providing training opportunities, I think it will take several things to close the wage gap. These include efforts to eliminate gender segregation of jobs and to promote fair pay practices, such as what we’re trying to do with the Labor Department’s Women’s Bureau Fair Pay Clearinghouse. [The clearinghouse provides free information to working men and women about fair pay.] We also need to continue vigorous enforcement of anti-discrimination laws.

It won’t be easy to reverse a pattern of wage inequities in our society, but I’m determined to make a difference.

I have spent a substantial part of my career, including as the director of the Women’s Bureau, fighting for equal employment opportunity for women and minorities. It won’t be easy to reverse a pattern of wage inequities in our society, but I’m determined to make a difference.

Q: How likely is it that you’ll be successful at mediating an agreement on compensation time?
A: The president is firmly in favor of giving employees a real choice between earning overtime pay or paid time off when they work more than 40 hours in a week. Giving employees more flexibility serves everyone’s interests-but we must make sure we do it in a way that’s good for both business and employees.

That’s why the president insists upon a strong, responsible comp-time bill. Although most employers will be fair to their employees, a change in the law to allow comp time must include adequate safeguards to maintain and protect the rights of employees. I am hopeful that Congress will agree to and send to the president a bill he can sign, one that gives employees real choice, protects them from those employers who might abuse comp time and preserves workers’ paychecks and the 40-hour week.

Q: What kind of new partnerships need to be formed in order to improve the quality of today’s workforce?
A: Stated most simply, my vision for the new American workforce and the next American century can be achieved only by building strong partnerships with the business community; the labor movement; every level of government; and community, charitable, religious and professional organizations of all kinds.

Q: What role should unions play?
A: I grew up under the tutelage of the great labor leader A. Philip Randolph, so I understand the importance of the labor movement for working Americans, especially for workers, such as those in the garment and other low-wage industries, who are too often underrepresented and ignored.

We’ve seen throughout this nation’s history that strong unions mean a higher standard of living, a more productive and involved workforce, safer jobs, better pensions and easier access to health care.

There’s no doubt in my mind that today’s unions are a critical solution to some of the most difficult economic problems facing our nation right now.

Q: What is the one thing that companies must change in order to remain competitive in the global marketplace?
A: They must invest more in human capital: increase the training opportunities and skill levels of all workers. This is no longer just a job for government. Government, employers, labor organizations and workers themselves need to keep pace with change and secure our position as the world’s most highly skilled workforce.

Q: What do you feel was the previous labor secretary’s legacy to you?
A: My predecessor and friend Robert Reich deserves the country’s recognition and gratitude for his service, perhaps most significantly for being a “godfather” of the School-to-Work initiative.

This program recognizes that a good education must teach our young people how to live well and how to make a living. Today’s economy puts a premium on skills. While professional jobs may account for approximately 20 percent of our workforce, 60 percent of American jobs are skilled, and only 20 percent are unskilled.

In 1997 it comes down to this: Knowing how to read and reason are as much practical as academic skills for at least four out of five workers.

Q: What mark would you like to make during your term of office?
A: I believe that by working together -leaders from labor, business, community organizations and government-we can deliver on a vision of an America that works for working people. We must keep faith with the social compact that built our prosperity: If working Americans learn new skills and work hard at their jobs, they’ll enjoy better lives for themselves and a better chance for their children.

As secretary of labor, it is my honor and my obligation to work for an America in which every woman and man can find useful work with rising wages and for an America that offers opportunity for our youngest people and security for our older people. And I will work for an America where work is honored and justice is done.

Workforce, September 1997, Vol. 76, No. 9, pp.40-47.

Posted on May 1, 1996March 15, 2019

Why At-will Employment Is Dying

Employers these days can’t terminate an employee without feeling a little nervous—and for good reason. Wrongful termination suits abound. Anymore, we need a stack of documentation and a series of disciplinary actions before we can even consider firing an employee. We need to check and recheck our tracks to ensure everything has been covered. The whole process can take up to a year, forcing us to focus our time and energy on our poor employees instead of our promising ones.

Yet most states have some sort of at-will history, allowing the termination of employees at any time, for any reason. Why then all the fuss over justifying a termination? To be blunt, it’s because at-will employment is on its last leg. Ironically, it’s the very laws designed to give employees an even break that have left employers at a disadvantage. Christopher Bouvier, senior labor counsel for San Francisco-based ABM Industries, details at-will employment’s erosion and offers advice on terminating employees safely.

To start out, can you give a definition of at-will employment?
Employment at will is supposed to mean that either the employer or the employee can terminate the employment relationship at any time, for any reason. That was the traditional American definition.

What’s at-will employment’s history?
The American concept of at-will employment dates back to the mid-19th century, rising primarily out of English common law. In the old days, the view was that an employer had the absolute right to choose its employees. And employer attitudes around the turn of the century were that you can terminate an employee for any reason you want. That was the way it was. It was accepted without question at that time and well into the 20th century. So that’s [the notion] it comes from: The right of capital to discharge labor was absolute.

In the United States, how was it handled—was it covered by legislation?
It depends on the state. California, for instance, has a labor code. It has been codified at least since the 1870s that an employer has the right to terminate an employee at any time, for any reason, and likewise, an employee may leave at any time. Other states have similar statutes. It may not be written in law and not passed by the legislature, but it has been decided by case law—the decisions of the courts have recognized that right. I’d say most states recognize at-will employment.

How did the spirit of at-will employment begin to erode?
In my opinion, the first major assault on employment at will was the development of labor laws in the early 20th century—the 1930s—which culminated in the current National Labor Relations Act. That act was attempting to strike a balance between the rights of labor and capital. One of the things Congress did was to protect an employee’s right to organize or be part of a union. It became unlawful at that point for an employer to terminate an employee because he or she had pro-union sentiments or union support. I believe that’s where you saw the first limitations on an employer’s right to discharge at will.

Did this sentiment snowball?
Federal labor laws basically cultivated labor unionism to an extent and allowed it to grow. Labor unions then were able to negotiate contracts that included protections for the right of discharge too. In other words, employers and unions would negotiate collective-bargaining agreements, and it became fundamental practice over the years that those agreements actually would have a clause in them that prevented discharge without good cause. The opposite of employment at will is no right to discharge unless good cause is proven by the employer. These protections began to appear in collective-bargaining agreements.

And this loss of at will expanded throughout unionized companies?
Yes, it did. Having the strength to bargain with employers, unions were able to negotiate these contractual limitations that said you can’t fire any union member unless you have good cause—and, of course, whether you had good cause would be decided by an arbitrator. This was in the 1940s and 1950s, and at that time it only applied to union employees. There was a 40-year period in which unionized America was winning more and more job protection. The concept of at-will employment was almost completely absent from unionized America by the 1960s. You couldn’t fire a union member unless you could prove that he or she deserved to be fired.

What was happening within the nonunion workforce?
In nonunion America, the concept of at-will employment was going strong. You could be fired at any time for any reason. There was a rather large segment of the workforce that was non-union, and those employees virtually had no protection against discharge. So there was a dichotomy. But with all these lawsuits now, we’re seeing the demise of at-will employment in the nonunion setting. The concept germinated in nonunion America by the fact that [eradicating at-will employment] was not unheard of anymore. It had been present in the labor community for a long time.

So it was simply a case of the non-union workforce following the example set in union America?
Not entirely. I’d say, personally, that Title VII of the Civil Rights Act was the beginning of the end for at-will employment in nonunion America—that was in 1964. It didn’t specifically eliminate at-will employment. But what it did was say it’s unlawful for an employer to terminate employees or to affect negatively the terms of employment because of an employee’s race, sex, national origin or religious beliefs. Before Title VII became law, if an employer didn’t like the fact an employee was, for example, Jewish, it could terminate that employee and really not face any problems. Then all of a sudden, you had an entire federal law that made it [illegal] to fire an employee because of one of his or her immutable characteristics, such as skin color or heritage.

This obviously was a much-needed law with excellent intentions—how did it become a stepping stone for the elimination of at-will employment?
Although Title VII said nothing about at-will employment, it suddenly provided a certain level of protection for an entire class of workers. Previously an at-will employee could be fired for any reason or no reason at all. Title VII allowed you to terminate an employee for any reason that wasn’t unlawful. So basically it became wise for employers to start having policies and documenting actions to protect themselves from any claim under Title VII. In 1967, Congress amended it to protect people older than 40: the Age Discrimination in Employment Act (ADEA). So that was another federal law that was in effect limiting the employer’s right to discharge an employee at will—union or no union. Then in the 1970s, states individually started passing their own fair employment laws that mirrored Title VII. The majority of states now have laws against discrimination in discharge.

Would you say the mindset toward employment was changing during this period?
The long-standing job protections for union employees combined with the protections of Title VII began to impact the thinking of employees, juries and judges. A mindset over time developed that employees couldn’t be fired without a good reason and without a lawful reason. So that’s the statutory erosion. At-will employment has eroded to the point of almost being extinct.

You say statutory erosion—was at-will employment under attack in other areas also?
Starting in the 1960s and 1970s, there were other concepts that came up that further limited an employer’s right to discharge at will. One of the first ones was a public-policy exception to employment at will. That’s where an employer’s right of discharge is limited by concerns of public policy. The classic example: An employee refuses to commit a crime at the employer’s instruction. The employer says, “Oh yeah? Well you’re fired.” That’s a public-policy violation. The courts over time have said you can’t have an employer having the right to fire an employee for reasons like that because it affects public policy.

You’ve mentioned damage awards and juries. Where do they fit in with the erosion of at-will employment?
Many legal theories allow terminated employees to seek a jury trial, and permit recovery of more than lost wages and reinstatement. A plaintiff in an employment case can often recover compensatory damages for his or her emotional harm, punitive damages in outrageous cases, and his or her attorney fees, which often exceed $100,000. After 60 years of increased employment rights, jury members tend to expect that an employee can’t be terminated without good reason, and they’ll award large damages if their sense of fairness is offended. The possibility of jury verdicts with large monetary awards makes employment cases attractive to plaintiff attorneys.

In the 1980s, wasn’t there an explosion in the area of employee contract rights?
The courts acknowledged an implied covenant of good faith and fair dealing between employers and labor, which was very popular among all of the states between 1980 and 1988. It said that an employer couldn’t discharge an employee in “bad faith.” In bad faith would mean to terminate the employee for arbitrary or unfair reasons without any real basis in fact or law. Many employees succeeded in obtaining large damage awards, which made these cases very desirable to plaintiffs’ attorneys. This particular claim is less widely used now because several courts eliminated the availability of punitive and compensatory damages.

What other developments were happening during this time period?
Another development that was going along side by side with the good faith and fair dealing covenant was the right of employees to prove the existence of implied contractual terms that limited the right of the employer to discharge at will.

How would they do that?
Let’s say I worked for a company for 20 years and during that time I’d been promoted from a stock boy in the mail room all the way up to the head of a division. I’d been given awards and raises, commendations and promises from my employer about my future with the company. Over time there’s going to be enough evidence accumulated for me to show that even though there’s not anything written down on paper, I have a contract, and they can’t terminate me unless they have good cause for doing so.

That’s another exception to the at-will doctrine?
Yes, it is. They can say that over this period of time, because of all the things that my employer has said to me and because of all the things said about my future, I had a reasonable expectation that I couldn’t be fired without good reason. So even though there are state laws that say you can fire any employee for any reason, employees can overcome that law. You can look anywhere you can possibly think of for statements by the employer: awards, commendations, longevity of employment, raises, verbal promises by your boss, or the most popular—employee handbooks.

Handbooks are a big trouble spot?
They were a fertile area of litigation in the 1980s, and they still are. In implied-contract litigation, the lawyers for the plaintiffs would subpoena employee handbook materials and cull through them to find whatever evidence they could to show an implied contract. At trial, they’d take the first page of the employee handbook where [a firm] talks about how it looks forward to a long, profitable relationship and wishes the employee a future with the company. The lawyers would blow this up 10 times and stick it in front of the jury. All those laws—Title VII, ADEA and other labor laws—have an impact on everyone’s mindset, on the jury as well as the judiciary, who are deciding these appellate cases. At this point they’ve had 40 years with the concept of employment rights, and it’s reasonable to both juries and judges that employees should have some kind of protection and shouldn’t be treated arbitrarily. All of a sudden, a lot more of the legal theories became a lot easier to swallow, when 50 years earlier they were completely foreign concepts.

Where will all this go?
The trend continues. We have the Family and Medical Leave Act, the Americans with Disabilities Act, the continued development of torts in contract claims and the public-policy claim. There’s still a tiny element of at-will employment still alive, but for the most part employers, just to be safe, have been forced to develop policies that are fair and equal and consistently applied; they have to document employees’ histories. From a lawyer’s point of view you still could argue that at-will employment exists under very limited circumstances. But, just to protect themselves, employers are required to be careful in how they treat employees. The result is that it’s really difficult to terminate any employee unless you can show you had a legitimate reason to terminate him or her. I wouldn’t want to declare at-will employment completely dead, but it’s lying on the ground gasping for breath.

Any suggestions for employers?
The safest thing for employers to do is to have uniform employment policies that also are uniformly applied and well publicized to employees. It is extremely important to maintain good documentation about specific treatment of specific employees, so that when the inevitable challenge to your termination decision comes, you’re able to show the employee was treated fairly, that he or she knew about the rules, and that he or she received due process and fair warning about what the consequences would be for failure to follow the rules. You need to show you gave employees a fair opportunity to perform well before you finally terminated them. Documentation has, of course, become critical because otherwise you won’t have anything to show when your judgment is questioned.

Is it getting hard to run a business these days?
Yes, it certainly is. Because of the constant enactment of laws and continual judicial activism, it requires a high level of sophistication for a businessperson just to maintain and manage employment relationships. And without that level of sophistication, you have huge areas of liability that really can hurt a fledgling business. It’s difficult to keep up with all the developments that come around.

Personnel Journal, May 1996, Vol. 75, No. 5, pp. 123-128.

 

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