What does ‘employment-at-will’ mean?

[B]By FRANK GIBSON[/B] [I]Special to the Saipan Tribune[/I] [B]Question: What does employment at will really mean? Can I agree with an employee to hire him or her without a contract and if I do this can I terminate the employment at any time, without cause or notice? [/B]

Before addressing the question, I have a couple of recommendations for companies and human resource staff reinforcing earlier articles.

Regarding the salary survey—if you haven’t participated—do so. The deadline was extended to Sept. 16. The government survey information is in for the Executive Branch, Public School System, and other agencies. A strong participation from the private community is needed to balance out salary input. Although the survey will only have an effect on jobs that require an H1-B or other INA visa requiring prevailing wage input, not the CW-1 petitions, a government salary level prevailing wage will have a significant impact on businesses with professionals: accountants, teachers, engineers, senior managers, computer programmers/analysts/engineers, and others. So, again, if you haven’t participated or haven’t received any information on the survey, contact Richard Pierce, the executive director of the Saipan Chamber of Commerce. Time is running out in order to have this survey information gathered and approved for use on your upcoming visa submissions. Also keep in mind that all H1-B visa and CW-1 petitions must be postmarked no later than Nov. 28, 2011.

Regarding the Transitional Worker Regulations—if you have non-U.S. citizen workers that you plan on having work for you past Nov. 28 of this year—read and know the regulation. Attend one of the meetings that will be held by USCIS over the next two weeks. Plan ahead and ask questions to resolve any uncertainties that you might have. The USCIS website has a very thorough question and answer page. Click the Relate Links or translations of the right-side box. http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?

To the question—I am an HR person and not an attorney. Employment-at-will seems on the surface to be simple—employment based upon mutual agreement—but it can be legally complicated and you should discuss not-for-cause termination issues with your attorney. I will provide some basic HR-knowledge discussion that will help you with some basics. The employment-at-will doctrine works on the premise that, when an employee does not have a written employment contract and the term of employment is of indefinite duration, the employer can terminate the employee for cause (due to misconduct or poor performance) or for no cause at all (you woke up in a bad mood one day, or some minor incident occurred that doesn’t really reach the level of misconduct). At the same time, the employee can also leave the employer at-will, without apparent reason or notice. It sounds simple, with both the employee and employer equally able to agree to and to end the employment relationship. However, there are some exceptions that the courts have determined to limit the employer’s at-will authority.

If the termination is discriminatory, based upon race, sex, national origin, or any of the other categories of protection provided by federal or local equal employment or civil rights laws. Anti-retaliation provisions exist in both federal EEO and labor laws.

If the termination violates state public policy or statute. This might include termination for whistle-blowing, refusing to lie in court or commit a crime for the company, applying for workers compensation after a work-related injury or, essentially, not being willing to violate a state policy or law that was intended to protect or prevent injury to the public.

If the termination violates a company policy, contract or agreement that provides the employee with employment protections or creates an “implied contract.” Policies, contract, handbooks, long-term practices, even verbal statements, that guarantee employment or set conditions on termination, could change the at-will arrangement.

If the termination violates the concept of “good faith and fair dealing” on the part of the employer or employee. This would effectively limit terminations to reasons of “just” cause.

NOW—having provided that information, let me again bring you back to your attorney. HR staff can counsel and recommend on point one, discrimination and retaliation, and on point three, policy documents or agreements that might limit at-will authority, but points two, state public policy, and three, good faith and fair dealing, depend upon state/Commonwealth public policies and statutes and upon local/U.S. District court decisions. Those situations require legal assistance.

Many companies now work with an at-will employment concept. However, this brief discussion points out the need for employers to take a look at their employment documents and policies, and to be cautious about promises or written or verbal statements. Write policies, contracts, and handbook in such a manner that they do not create and implied contract, and include a disclaimer statement in each that clearly states that the document does not create a contractual obligation.

When in doubt—check with your attorney.

[I]Frank L. Gibson, SPHR, GPHR, owner of HR Support, CNMI, has been a resident of the CNMI for more than 14 years. One of the founding members of the CNMI Chapter of the Society for Human Resource Management, he has worked both as a line-manager of human resources and in the Human Resource Office.[/I]