The Five Employment Law Principles

In this article, we will use three questions that we received recently from Vault.com users to identify five of the basic employment law principles that we expect will be raised repeatedly in this column.

1. I am the HR Manager for a small, 85 person eBusiness consulting form. Four months ago we hired a business development manager to create strategic relationships and partnerships with other firms that would eventually lead to future business. The problem is that the person we hired has not been able to develop good working relationships with co-workers. We are concerned about the effectiveness of a "relationship" person who is unable to get along with colleagues. We have also determined that our development manager requires a lot of supervision and does not have the ability to "take ownership" of the job. We are a lean organization, and the VP Sales & Marketing, does not have the time to hold anyone's hand. We want to terminate this persons employment. What issues should we be aware of?

Discharging an employee can be one of the most personally difficult and legally complex decisions any employer can make. This is because whenever an employer considers discharging an employee it needs to consider a wide range of legal and cultural issues.

First, the legal ones:

• Is the employee "at-will" (that is, may either the employer or the employee terminate the employment relationship at any time, for any reason, with or without notice)? Or has the presumptively (at least in most U.S. jurisdictions) at-will nature of the relationship been altered to a contract implied from, e.g., the wording of an offer letter or the individual's reliance on "representations" made by the employer?
• Is there a reason for the employer to be concerned that the employee will bring a claim of discrimination? Are any interpersonal problems the product of biases of coworkers?
• Along similar lines, has the employee raised any kind of complaint with the employer? The employer needs to be aware of retaliation claims. For example, some legitimate whistleblowers may not be discharged because of their complaints. Similarly, individuals who have recently taken certain leaves of absences may be protected.
• How has the employer dealt with similar performance issues in the past? Many employees who sue compare the treatment they received to the treatment that other employees have received.
• Should the employer consider providing severance pay? Generally severance pay (if not required as part of a severance plan) may be paid in exchange for a "release of claims," a contract in which the employee promises not to sue the employer.

~As for cultural concerns:

• How would discharging this person affect other workers? Production? Operations? Morale?

These are just very few of the issues we consider in advising employers considering terminating an employee's employment. A discharge analysis is rarely straightforward or simple. Advice from a competent employment attorney concerning your specific set of facts may be in order.

2. Our small non-profit agency has a probationary period for employees. However, I noticed that most companies have something called employment at will employment. I don't really understand it but it seems that don't use a probationary period, yet they have more freedom to terminate employees. Can you explain the advantages and disadvantages to both policies.

At-will employment is a key legal concept that every Human Resources person should be familiar with. It means that either the employer and the employee may end the employment relationship at any time, for any reason (not contrary to law, e.g., such as for a discriminatory reason), with or without notice.

In recent years, courts and legislatures have narrowed at-will employment to a large extent. Today, for example, federal and state anti-discrimination laws limit an employer's ability to fire an employee based on a discriminatory reason. Many states have in force other limits on at-will employment. Even so, the doctrine basically means that employees are not bound to work for a term, but rather may leave (voluntarily or involuntarily) at any time.

Most employees without employment agreements with the employer, and even some who do, are at-will employees. In most states, if nothing is said concerning the term of a person's employment, she is presumed to be employed at-will. We usually advise employers that identifying employees as at-will is important. We like to state in policies that we draft that an employee's at-will status may be changed only by a written agreement with a high ranking officer of the employer. But whether or not the start of an employee's employment is designated an introductory period is less clear. A reasonable position is that so long as no distinction is made with regard to the employer's ability to discharge employees at-will following the introductory period, whether or not employers use an "introductory period" is up to them.

You are correct that "probationary periods" are used by many employers. Traditionally, these were thought to provide the employer with some additional ability to discharge an at-will employee early in her employment if she did not work out. But as you can probably understand, because most employees are at-will, a probationary period (or "introductory period" -- a better term) does not really make sense. After all, we would not want to create any expectation among employees that the employer could not terminate their employment following an introductory period. Despite this, introductory periods are sometimes used to identify the first weeks or months of employment to describe the period when an employee is not yet eligible for benefits, for example.~3. We are in the process of upgrading our computers and Internet service and we are concerned about abuse. How do we communicate to our staff that we expect them to use the internet for business purposes only? We don't want to have to police in a tough manner. Got any suggestions?

As even the smallest companies leave behind traditional methods of communication in favor of e-mail and internet, all employers deal with the issues suggested by your questions sooner or later. On the one hand, employers hope to keep their workplaces friendly, allowing their employees the freedom that encourages new ideas and helps to keep turnover to a minimum. On the other hand, anyone with access to e-mail and the internet at work knows that they can be major distractions. Beyond being distracting, there are some sites (we all know which they are) and "chain messages" floating through cyberspace that should never be viewed at work. The workplace is for work, after all.

That being said, how should employers deal with these competing interests? Well, there's no easy answer. But here's a suggestion: Many employers have implemented written e-mail and internet policies. In addition to explaining to the workforce that all e-mail messages are the employer's property (and so, may be searched by the employer at any time), these policies also restrict the use of e-mail and the internet only to business. The best of these written policies refer to the employer's written anti-discrimination policy and explain that some uses of the internet and e-mail may infringe on coworkers' right to a harassment-free workplace. In recent years, many sexual harassment cases arise from internet or e-mail abuse.

We certainly understand your concern about policing in a "tough manner." Although not always inappropriate, being heavy handed tends to create hard feelings among even those employees who are not disciplined. We believe that the best internet and e-mail policies are friendly, but make the point in a straightforward way. Once a policy is implemented, it should be enforced consistently and reasonably.

Summary: These questions raise several themes that are consistently raised in our practices. Here are a few pointers drawn from those themes that we expect to raise often in this column.

1. Implement straightforward, understandable policies.
2. Enforce policies consistently and evenhandedly.
3. As an employer, it is in your business interest to keep the effect on workforce moral in mind at all times.
4. When discharging employees, be aware of the risk of a lawsuit and act so as to minimize that risk.
5. Understand the concept of at-will employment. But, remember, just because an employee is at-will does not mean that there is no risk in discharging him or her.

We look forward to making this column thoughtful and informative. Your comments and suggestions are always appreciated.

'Ask the HR Law Experts' provides a forum for discussing topics relating to employment, including those that may be legal in nature. It does not purport to provide legal advice and none of the responses of the HR Law Experts should be construed as legal advice. Please understand that the HR Law Experts do not focus on the laws of any particular jurisdiction in responding to inquiries. But state law may drastically affect the rights of employers. To obtain legal advice concerning a particular situation, you should seek competent legal counsel.