Employment at Restrained Will

In the aftermath of the much publicized defeat of a limited employment at will law by French students and unions, it may help to consider whether the protesters had cause for concern. Employment at will means that unless certain exceptions, such as illegal discrimination or a contract violation, are present, the employer or the employee may end the employment relationship for a good reason, a bad reason or no reason at all. It has been described as the default mode in most American employment relationships. Since employers have the greater economic leverage, employment at will is often regarded as a heavy-handed doctrine that can lead to the jobs of good people being ended on a whim.

There is just one thing wrong with that analysis. It overlooks an obvious fact of workplace life: Employers don’t like to fire people.

In the United States, even employers whose handbooks trumpet the employment at will doctrine reluctantly move to termination. Why? Because firing can involve a number of unpleasant experiences. Among them are:

• No one, aside from a few psychotics, enjoys hurting people. It’s not fun to tell someone that the ax is about to drop.
• Firing an employee reflects poorly upon the person who made the initial hiring decision. Usually that’s the same person who will make the firing decision.
• Recruitment and selection take time and cost money.
• Training replacements is even more expensive.
• Getting people up to a reasonable level of proficiency can take months and perhaps years.
• The devil you know may be better than the one you don’t.
• The organization’s Human Resources department may object. Even though employers like to hold employment at will as a legal defense, the larger ones practice a private sector version of civil service review. Their in-house attorneys know about wrongful discharge and Equal Employment Opportunity. The manager who thinks that a termination recommendation is going to be rubberstamped is usually disappointed.
• People and organizations don’t want to risk the hassle and exposure of litigation. I once saw a case where a supervisor had been waving around a gun, drinking on the job, and fondling women. When he subsequently filed a discrimination complaint after he was forced to resign, one of the top executives asked, “Can’t we just find him a desk somewhere?”

Although critics view employment at will as synonymous with abrupt and arbitrary termination, it can be a relatively gentle way to resolve some common workplace problems; challenges that should be familiar to anyone who understands the concept of no-fault divorce. One scenario is where the employee is qualified and can do the basics of the job, but just doesn’t fit in. Another is where personality conflicts between the employee and the boss or members of the team create continual inefficiency and flare-ups.

The employer could search for a more substantive basis for termination, much as spouses once used to try to catch their partner in adultery in order to establish grounds for divorce, but that would simply prolong the pain and increase the acrimony. Employment at will allows for a “no fault, no foul, let’s end this” conclusion.

People who want to require a reason for every termination seek to hammer the poetry of human relations into prose, preferably on legal-sized paper. They are talking past the hard truth that sometimes people just don’t get along. Remember the old nursery rhyme:

I do not like thee, Doctor Fell,
The reason why I cannot tell;
But this I know, and know full well,
I do not like thee, Doctor Fell.

Employment at will can be abused. But when controlled by the employer’s own inherent restraint and policies, it can be better than some of the alternatives.

It’s a shame they didn’t realize that in Paris.