Summary of the Employment-at-Will Doctrine
The employment-at-will doctrine is the basis for employer/employee relationships in most states in the United States. In essence, employment at will gives business and companies in America the ability to fire an employee whenever they want for any reason. The only exceptions to the employment at will doctrine is when it occurs illegally, in violation of public policy for the state or municipality under which the company or branch is run. Other exceptions include implied contracts, in which oral assurances are made between employee and employer to build certain expectations of employment, illegal discrimination against race, color, age or sexual orientation, protecting the off-duty activities of an employee, retaliation against whistleblowing, and more.
Scenario 1
1.John posted a rant on his Facebook page in which he criticized the company’s most important customer.
In this scenario, John does not have a leg to stand on with regards of defending himself from getting fired. The most pertinent possible exception that could be cited would be illegal discrimination protections for employee’s off-duty activities, which defends employees in some states from being fired for things they do outside of work. However, in the case of John, the reason he was fired was because he openly criticized an important customer, which was work-related; to that end, the company is able to take action by terminating the employee. While what he was doing was on his own time, the actual activity he engaged in was damaging to the viability of the company and could have cost them an important client. Ostensibly, employees must still be ambassadors of their company even on the Internet and in a public forum like Facebook. To that end, the company is right to fire John.
In order to limit liability for the company, stipulations should be placed in employee contracts specifically stating that they should not speak about the company or its clients and employees in a defamatory manner on social media. This would provide employers with a concrete reason to fire employees who speak negatively about the company on Facebook, without worrying that they are discriminating based on off-duty activities. Given these provisions, John should be fired on the grounds of the public text he wrote condemning an important client to the company. In order to protect the reputation of the client and the company’s relationship with them, the company should apologize to the client and make the posting of this information the chief reason for which John was fired. This allows the company to protect itself under the auspices of utilitarian ethical theory; this provides the greatest good for the greatest number of people – the company protects its reputation, and the client gets to feel as though their interests are being protected.
Scenario 2
2.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 this scenario, Ellen is being fired because she posted inflammatory and negative stuff about the company online. While this may be grounds for termination in a situation similar to John’s in Situation 1, the primary difference is that Ellen could be perceived as ‘whistleblowing,’ i.e. revealing unethical or improper company activities to the public because she regards them as unethical. Because of this context, Ellen is protected from employer discrimination and retaliation against whistleblowing. While this provision is not true for many states, some states do have whistleblower protections set up to utilize under the state’s employment-at-will doctrine. To that end, depending on the state and the determination of whether or not Ellen’s activities constitute whistleblowing, she may well be protected under the doctrine.
In order to limit liability, a similar provision to John’s scenario should be enacted in this company’s policy, extending the limitations to all online speech about the company. Whistleblowing retaliation laws only support actual exposure of unethical company actions; the closest Ellen’s scenario comes to exposing unethical behavior is possibly accounting fraud and discrimination, but these actions may also be interpreted simply as legal practices Ellen disagrees with. By offering a provision to protect the company against defamatory speech that does not include whistleblowing, situations like Ellen’s blog can be dealt with through legal termination.
Scenario 3
3.Bill has been using his company-issued BlackBerry to run his own business on the side. In this scenario, Bill used company property to perform duties for which it was not suited, and, depending on the purpose of the side business, could have been openly competing with his own company. For these reasons, the company is well within legal grounds to fire Bill. Employment-at-will doctrine does not really interfere with this decision, as there are no exceptions that would apply in this case. There is no public policy that supports the use of company property to run a side business, there is no implied contract or agreement to use the phone in that way, there is no discrimination on the basis of age, gender, sexual orientation, or other protected status, and Bill is not whistleblowing. To that end, Bill is fired under the provinces of the employment-at-will doctrine.
Illinois Employment-At-Will Doctrine At Work
In Illinois, the employment-at-will policy currently protects exceptions for public policy and implied contract, but not in cases of covenant of good faith and fair dealing (Muhl, 2001). One recent case of an employee utilizing an exception to the employment at will doctrine was Vincent Straub, who successfully sued on the grounds of workplace discrimination because of his military service. According to the plaintiff, he was fired from his job as a radiology technician at Proctor Hospital because he was asking to take substantial time off to serve in the Army Reserves. According to the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), Straub was unlawfully employed given that a ‘motivating factor’ for his firing was his military service. In this respect, Straub successfully used his knowledge of the employee-at-will doctrine laws of Illinois to win the case; the hospital had violated the public policy exception for at-will employment and discriminated against Straub for his military service (Markowitz, 2010).
References
Markowitz, E. (2010). Employee discrimination case reaches Supreme Court. Inc. Retrieved
Muhl, C.J. (2001). The employment-at-will doctrine: three major exceptions. Monthly Labor
Review: 3.
Outten, W.N. (2007). When Good Deeds Are Punished: The Legal Landscape of Retaliation and
Whistleblowing. Litigation and Administrative Practice Course Handbook Series, PLI Order No. 11091. New York: Practising Law Institute.
Stone, K.V.W. (2007), Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied
Terms, and the Normative World of the Workplace. Industrial Law Journal.
