A Real Talent Strategy, Terminate Employment At-Will

Ed Baldwin Audacious Ideas, Benefits, Ed Baldwin, Employment Law

How much of your current time and energy as an HR pro these days is being put into creating a talent strategy for your company?  A strategy that differentiates your company from others by attracting and retaining the very best to come to work for our company, rather than the competition?

Yeah, that’s pretty much what we are all working on.

But wait, the ping-pong tables have been delivered, the slide from the 2nd to ground floor is under construction, the cafeteria offers free Starbucks in the morning and cold beer in the afternoon.  Personalized work spaces chocked full of comfortable couches and collaboration areas abound.  And you’re on your third round of employee engagement surveys and have just implemented a kick-ass employee recognition program.

You’ve done all you can right?  Not. Even. Close.

What are you doing to address the tangible commitment your company is making to your employees?  What are you doing about that implicit employment contract that causes shivers to roar up your lawyer’s spine when you even refer to it that way.  It’s not a contract, they say.  Sorry, but yes it is.

Employment at-will is a common law doctrine that first appeared in a treatise in 1877, written by Horace Wood.  It states that employers may dismiss their employees at-will, “be they many or few, for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong”.

Great language if you’re an employment lawyer that only cares about company interests.  But pretty harsh language for Joe Employee.  I’m certain the person doing on-boarding at your company blows through that section of the handbook pretty quick.  Yikes, get to the employee perks as quickly as you can.

So, is employment at-will really the company’s employment commitment you want to make to your employees?

Now I realize that in the last 141 years we’ve managed to punch some really big holes into the premise of employment at-will. Lots of enacted legislation that says you can’t fire someone for ANY reason. There are lots of reasons you can’t fire someone these days – gender, age, race, national origin, religion, disability, or sexual orientation, just to name a few.

But why is employment at-will still so prominently featured in the handbooks of even the most progressive and enviable forward-thinking organizations today, nearly a century and a half after it was first documented?!

I don’t get it.

While employment at-will persists as a prominent feature of employment policies and handbooks, any employment lawyer worth their salt will advise you that if you’re leaning on employment at-will as a basis for terminating staff you’re on shaky ground, to say the least.  So why don’t we just dump it?

I think it’s time we think beyond ‘what’s always been’ and make a deeper and more robust commitment to our employees.  It’s time we shed the at-will employment premise for good and replace it with straight forward language that articulates the real reasons we’ll end an employment relationship.

Let’s rewrite the employment relationship.  Get rid of employment at-will.  And make a commitment to our employees that we believe is worthy of reciprocation.  With so much of our time and effort these days being spent on talent and employee retention strategies, it’s time we think and act beyond the soft and fuzzy of creating cool work spaces.  This stuff is nice but it doesn’t materially move the retention needle.

What will?

Making a stronger commitment to employees by dumping at-will and being honest about the reasons their employment will be terminated.  Add to this a commitment to help them through the transition if the company elects to terminate the relationship without cause and the commitment gets even stronger.

That’s a retention strategy that will make a difference.  And it’s the right thing to do.