Putting Humanity into HR Compliance: Change the Tone of At-Will Employment?

 

Jathan Janove, J.D. By Jathan Janove, J.D. July 19, 2019
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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.

In recent years, several of my clients have complained about the difficulty they face in retaining employees, especially younger ones. They decry these employees' lack of commitment and perseverance.

But because employers typically set the transactional tone at the start of the employment relationship, they shouldn't be surprised by what they consider a lack of employee commitment or perseverance. After all, one of the first things a new employee is asked to do is acknowledge that she has no contractual rights.

As part of the onboarding process, she reads that "this handbook and the policies contained therein do not create any contractual obligations on the employer's part." Next, she must acknowledge that her employment is at will. Typically, she will have to sign her name to the acknowledgment that "except for a reason prohibited by law, your employment may be terminated at any time for any or no reason, with or without notice, and with or without cause."

What if employers took a different approach? What if they expressed a commitment and willingness to be held accountable for the kind of workplace they say they want?

What if, instead of legalistic disclaimers, the employer said, "With every employee we hire, we hope that he or she will remain with us as long as we have the work and they are willing and able to help us succeed. We believe in longevity of employment and are committed to doing what we can to make it a reality"?

About now, I expect some HR professionals are jumping out of their chairs. "This is a reckless invitation to litigation!" some may exclaim.

I am a former employment defense attorney, and, as I wrote in my article featuring five prominent California plaintiffs' attorneys, in my experience it's typically not the failure to dot the compliance "i's" and cross the compliance "t's" that produces employment litigation. Instead, lawsuits usually arise when employees feel they've been dehumanized, mistreated and disrespected. That's what drives them to seek a plaintiffs' attorney.

I put this issue to several employment attorneys on both the management and employee sides. As you might expect, reactions varied.

Some support change.

"I like it," said former CHRO and general counsel Charlotte Miller of Salt Lake City. "This makes sense. Let's onboard in a more positive way."

"I love this approach!" exclaimed Dana L. Sullivan, a partner at Buchanan Angeli Altschul & Sullivan in Portland, Ore. "I believe even a risk-avoidant employer could include disclaimer-type language that is consistent in tone with the language you're suggesting," she told me. For instance, she suggested, such language might state that "while we can't guarantee that this will be your forever job, we can commit to doing what we can within reason to help you succeed."

Others were less impressed.

Replacing legal disclaimers about at-will employment would be "nuts," said Michael O'Brien, a partner at Jones Waldo in Salt Lake City. O'Brien doubts that at-will language is what drives people away. Plus, he added, "we use it to get rid of stupid and pointless lawsuits against employers."

While acknowledging that I raise a good employee relations point, Brian McDermott, a partner at Jackson Lewis in Indianapolis, also thinks it would be a mistake to eliminate such disclaimers.

"The at-will rule is a substantial protection against breach of contract claims," he said. "Employers already are subject to a plethora of discrimination laws and claims. Adding breach of contract claims to issues normally protected by the at-will rule would be costly and disruptive to business."

 Mitch Cogen, a partner at Bullard Law, a Worklaw® Network member in Portland, Oregon, agreed with me that "many of the things employees are told and given are based on the employer's legal defensiveness and don't necessarily create the most welcoming or encouraging environment, and may start the relationship on less than optimal footing."
While Cogen doesn't support replacing a legalistic disclaimer, he acknowledged that this is "an area that needs to be discussed and fleshed out. I think a happy medium could be effective."

Sullivan's colleague, Paul Buchanan, endorsed Cogen's suggestion. He floated language along these lines:

"We believe that the employment relationship is one in which each party must invest time, patience and effort for the relationship to be successful. Our goal is to ensure that we make that investment in every employee and that every employee has the opportunity to thrive and develop. We also know that a successful employment relationship requires communication, candor and accountability between the employer and the employee."

Buchanan asserted that a statement like this "is not inconsistent with at-will employment, but it's a lot more positive and creates an expectation that the parties are going to work at making the relationship successful such that abrupt or overly harsh terminations are unlikely to occur."

He said that employers could still include at-will language in an employment offer letter but that the at-will statement need not be so harsh. It could, for example, read something like this:

 "We hope and expect to have a long-term and mutually beneficial employment relationship. We recognize, however, that at some point in the future either you or the company may choose to end the employment relationship. We believe that either party should be free to make that choice at any time. For this reason, employment at ABC company is at will, meaning either you or the company may choose to end the employment relationship at any time."

What's your view, HR professionals? Have we overlooked anything? Is there a better way? I'd love to know.

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amazon, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for future columns, write to jathan@jathanjanove.com

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