Employment-At-Will Doctrine This paper will cover what legal rights employers have and whether they have the right to follow an employment-at-will doctrine. As the newly hired Chief Operating Officer (COO), I am faced with multiple personnel problems. There are eight different scenarios that I have to assess and determine what action to take against the employee, whether the employee can be fired, and what action will limit liability and impact on operations. I have also discovered that the company has no whistle blower policy and now need to decide if I should suggest that we adopt a whistle blower policy. The United States is among only a handful of countries that follow an employment-at-will doctrine, the only state that does not is Montana. Unlike the United States, most countries can only fire employees if there is a cause. The United States can fire employees for no cause, employees could walk into his/her place of employment tomorrow and be fired. The company also does not have to give a reason for firing the employee. “At-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences” (NCSL). Employment-at-will also means that employers have the right to change contracts at any time. For instance, employers can reduce paid time off or change benefits. There are some exceptions to the rule: a company cannot dismiss employees based on race, gender, color, or religion; employees cannot be fired for reporting violations of workplace safety; an employer cannot fire an employee for exercising the right to file a workman’s compensation or a sexual harassment claim.
First scenario, John posted a rant on his Facebook page in which he criticized the company’s most important customer, in employment-at-will jurisdiction, may John be legally fired? Social media has become a platform for interactive dialogues related to work, personal matters and issues of great social and political import. As the COO, I have to address the following questions. Was the content work-related, or personal? Did it touch upon a broad social or political issue? Can the employee argue that the company invaded his privacy? “The employment-at-will doctrine holds that if an employee is an employee at-will, that is, one who does not have any contractual provisions limiting the circumstances under which the employee can be discharged, then the employee can be terminated for any reason – good, bad, or morally wrong, or no reason at all – and without any warning, notice, or explanation” (Cavico, Mujtaba, Muffler, & Samuel 2013). The case “Karl Knauz Motors, Inc. Case 13-CA-036452, Sept. 28, 2012” (Danaher 2012), an employee of a Chicago car dealership was fired because he posted critical comments and photos of the employer on Facebook, including a statement that the sales commissions were likely to drop because the dealership’s promotional event only served water and hot dogs. The facts in John’s case are similar to the case of Knauz in which the court stated that the employee could be fired for posting critical comments. According to the employment-at-will doctrine, John can be fired for his Facebook rant against the company. I would recommend that John be fired for damaging the company and customer relationship. Egoism theory, which is the view that morality coincides with the self-interest of an individual or an organization, can be used as the framework for making the employment decision. The company’s focus should be their own and their customer’s best interests not the employee’s.
Second scenario, Jim sent an email to other salespeople protesting a change in commission schedules and bonuses and suggesting everyone boycott the next sales meeting. In employment at will jurisdiction, can Jim be fired? With the increase of electronic communications technology, employees may protest unfair work rules or post a comment about poor wages on an electronic bulletin board. Technology is making it a tough struggle for the NLRB (National Labor Relations Board) and the courts to develop a new cyber law for labor law contexts. “Section 7 of the NLRA gives employees the right to engage in activities for the purpose of mutual aid and protection” (NLRB). Employees have the right to engage in activities where they protest unfair work rules. If an employer disciplines or terminates an employee for exercising his or her Section 7 rights, whether the activity is union-related or not, the termination would be deemed an unfair labor practice. In this scenario, Jim is protected by section 7 of the NLRA and the company cannot legally fire Jim for his emails. The company could use a utilitarian approach, which is the moral theory that we should act in ways that produce the most pleasure or happiness for the greatest number of people affected by our actions. The company could try and figure out ways to reward employees for hard work without offering bonuses, maybe an extra hour off on Fridays or a luncheon for the whole company. When employees feel as though someone cares, they are much happier.
Scenario three, Ellen started a blog to protest the CEO’s bonus, noting that no one below director has gotten a raise in two (2) years and portraying her bosses as “know-nothings” and “out-of-touch”. In the case “'Bitter Barista' Matt Watson Fired over Snarky Blog”, the employee Matt Watson, was fired for what he wrote in his blog stating that his vocabulary is too complex for his boss to understand. Matt Watson also wrote about not serving customers what they ordered. He never identified his name or the company’s name, however, Watson’s boss Seth Levy stated “Watson was writing about his boss during business hours, and I represent the business, the customers and the staff. I cannot endorse what he was saying, whether humorous or not. It puts me in a difficult position where if I don’t respond that means I endorse what he's saying." (Lacitis 2013). The company has the right to fire Ellen if she was blogging on company time. While Ellen could be fired for being upset, the company should follow a utilitarian ethical approach. To help maximize employees’ positive work place attitude, the company should take actions to show employees that they care about them, even if the company cannot offer everyone raises. Possibly, a good business strategy might be that the CEO stop receiving bonuses until the company is in better financial standings.
Scenario four, Bill has been using his company-issued BlackBerry to run his own business on the side. If the employer pays the bill for an employee’s cell phone or PDA, the employer will be able to see what numbers were called, what text messages were exchanged, what websites were visited, and how much time was spent online or on the phone. In the case “City of Ontario v. Quon in 2010”, Quon had been fired for using a company issued pager for personal use. The United States Supreme Court held that a company may view personal text messages on a company phone. The company has the right to terminate an employee if the BlackBerry is used for anything other than company business. The BlackBerry in this case is company issued, which means Bill has little privacy and the company can fire Bill for using a company issued cell-phone for his own personal use. The company could use an Egoism ethical theory in this case because Bill was concerned about his personal business while on the company time. The company needs to protect themselves from others, by firing Bill, the company is looking out for their best interest.
Scenario five, the secretaries in the accounting department decided to dress in black-and-white stripes to protest a memo announcing that the company has installed keylogger software on all company computers. “Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced” (National Labor Relations Board). The secretaries feel unsettled with the keylogger software. I believe that, as long as the secretaries are not hurting the company and promise to follow dress code, they should not be fired. This scenario aligns with Kant’s ethical theory. Immanuel Kant believed that the moral worth of an action is determined on the basis of its intrinsic features or character not results or consequences. When the secretaries dressed in black and white stripes, their moral action did not hurt anyone or the company.
Scenario six, after being disciplined for criticizing a customer in an email (sent from his personal email account on a company computer), Joe threatens to sue the company for invasion of privacy. In the case “Smyth v. The Pillsbury Company”, Plaintiff Michael A. Smyth brought suit against his former employer, The Pillsbury Company, alleging wrongful discharge after the employer terminated him for transmitting what the employer deemed inappropriate and unprofessional comments over the company’s e-mail system. Because Smyth was an “at-will” employee, his suit hinged on whether the discharge violated a “public policy”. The facts in this case are very similar in which the court found for the Defendant The Pillsbury Company. Even though Joe used his personal email, he was using a company computer. The employer has every right to fire Joe for using company property in the manner that he did. The company can again use an egoism ethical approach as the basis for firing Joe. When an employee in the private sector uses company technology, the company has every right to protect their equipment and monitor employee usage. There is really no personal privacy when using company issued items such as phones, computers, and even company vehicles.
Scenario seven, one of the department supervisors requested my approval to fire his secretary for insubordination. Because the secretary has always received glowing reviews, I called her into my office and determined that she has refused to prepare false expense reports for her boss. This is a case of harassment at work with the supervisor using his power to either get what he needs or get her fired. Because the secretary came forwarded and admitted the truth, she should be protected under whistle-blowers laws and not be fired. The supervisor in question needs to be investigated. The company needs to find out why he was having his secretary falsify reports for him. In deciding the outcome for this scenario, I would follow a Prima Facie Obligation's theory approach. Prima facie is a duty that is binding (obligatory) that is, unless it is overridden or trumped by another duty or duties. The secretary falsified documents because her boss was threatening her job. She was keeping a promise to her boss in order to not be fired which falls under the ethical theory prima facie and I would not recommend firing the secretary for her actions.
Scenario eight, Anna’s boss refused to sign her leave request for jury duty and now wants to fire her for being absent without permission. “The Jury Act forbids any employer from firing, intimidating, or coercing any permanent employee because of their federal jury service” (United States Courts). Employers cannot refuse to allow an employee to assist to their civic duty. For example, “a Texas employer was arrested for firing a worker who insisted on honoring her civic duty of responding to a call for jury duty” (Nolo Law for All). The company does not have the legal right to fire Anna, and has a Prima Facie ethical duty to make sure Anna is able to offer her civic rights and serve as a juror.
Adopting Whistleblower Policy “Whistleblowers, those individuals who call attention to possible wrongdoing within their organizations, are the subjects of much controversy” (Barnett pp. 37-42). I believe that organizations should develop formal whistleblowing policies as a way to create the conditions necessary for the effective management of whistleblowing. These policies provide standard guidelines within which organizations respond to the ethical or moral concerns of their employees. The company’s whistleblower policy should include – (1) The type of complaints which may be reported; such as insider trading, harassment, criminal conduct, conflicts of interest, improper business conduct, mismanagement of resources, environmental damage or risk, threats to health and safety, and violation of laws applicable to the company. (2) The process for a potential whistleblower to make a complaint; in-person with legal counsel, anonymous email and phone calls, or protected disclosure hotline. (3) An outline of the steps explaining how complaints are handled once they are received. Importantly, there should be direct information indicating if a formal investigation will be conducted and if so who takes charge of the investigation. Employees need to know that they are protected if they come forward with information. There are times when people sit back and do not say anything because they are afraid of the ramifications. Employees should always understand the importance of coming forward and reporting unethical behavior. Employees should also know and understand their rights. With a whistleblowing policy in place, the law will protect employees if they chose to disclose unethical workplace behavior.