Sunday, January 10, 2010

The Deceptive Nature of At Will Employment

In most job application forms used in the United States today, there is a legal clause stating that the job consists of "at will employment" which can be terminated "with or without cause" at any time, by either the employer or the employee. Sounds fair, right? After all, if the employee is free to quit at any time without cause, then why shouldn't the employer be equally free to terminate the arrangement?

Here's the trouble: Regardless of whether or not an employer had just cause for termination of the employee, it's generally assumed in the course of most job interviews (and even prior to those interviews, when potential employers are looking over job application forms to determine who to interview and who to ignore) that the employer had just cause for terminating the employee.

If the employee terminated the arrangement, on the other hand, the employee is once again assumed in most cases to be the one at fault. It's presumed, especially if the employee was only at that job for a very short time, that the employee quit the job because he was flaky and unable to commit to anything, when in fact the employer may have been a complete jerk whose abusive treatment of the employee drove the employee to quit even though the employee badly needed the job.

In short, job interviewers represent the employer, so they naturally see all employers as the "good guys", whether specific employers are in fact good guys or not.

This is true, to some extent, even if the applicant has only lost or quit one or two jobs in his entire life. But negative accumptions tend to snowball for employees who have had a string of bad luck.

In short, the "at will" employment arrangement greatly favors the employer, since it basically gives the employer permission to treat the employee in a manner which completely disregards the Golden Rule. Regardless of whether or not their reasons for termination of their employees are just or reasonable, they seldom suffer loss as a result of such decisions. At worst, they may be required by the state to pay a portion of the terminated employees' unemployment insurance; but even then, they are unlikely to suffer any serious negative business repercussions, whereas employees who have been unjustly fired can spend many years trying to simply recover from such incidents and get their careers back on track.

Now, it's true that employers can be sued for "wrongful termination," but such lawsuits are rare; and usually, they're limited to very specific types of situations, such as overt discrimination on the basis of race or age or gender. It's hard for the injured party --- namely, the fired employee --- to prove that the loss of his or her job is attributable to flaws or errors in judgment on the part of the ex-employer.

If an employer makes an "at will" clause a part of the job application form or the written job offer, it's not as if the employee-to-be has any say in the matter. Any job applicant who insisted that that clause be stricken from the agreement would basically be forfeiting even the slightest chance of being hired for the position. So even though it may appear that agreeing to that clause is a strictly voluntary matter, that's an illusion. Job applicants basically take their chances, cross their fingers and pray that their new bosses aren't inconsiderate jerks. Sometimes, they get lucky. Often, they do not.

Having experienced the downsides of mutual "employment at will" arrangements firsthand, I would change the laws to prohibit such compulsory agreements between employers and employees. All employers who fired specific employees would be required to justify their actions legally, not just in relation to unemployment insurance compensation claims, but also in a manner which would enable wrongfully discharged employees to apply for future jobs without having such incidents held against them. And perhaps there would be some method of publicly shaming employers who abused their authority by firing employees at the drop of a hat for reasons which had nothing to do with job performance.

Another solution might be to require that all job interviews be conducted by independent parties who would be more objective, rather than being conducted by people who by natural inclination tend to automatically make positive assumptions about applicants' former employers.

This might also help to reduce the need to go through the common song and dance wherein applicants are inhibited from being really honest about their former employers, during the course of interviews, on account of their awareness that such honesty will generally be held against them, regardless of whether or not what they say is true.

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