by Nanci Lamborn, SPHR and BrightMove Recruiting Software

If your candidates are some of the recently unemployed masses within the majority of states operating under an “at-will employment “ clause, which is almost all US workers not employed under a contract, chances are that some of them may have a little difficulty in explaining that pesky “reason for leaving” question to potential future employers. After all, if your boss simply hated your red tie one day and chose to fire you for it, unfair as it seems, he could legally do just that.

Sometimes incorrectly labeled as “Right-to-work” states (which are an altogether different definition http://tinyurl.com/yc59dx), Wikipedia includes the following in their definition and explanation of the at-will clause: “…the employer is free to discharge individuals ‘for good cause, or bad cause, or no cause at all,’ and the employee is equally free to quit, strike, or otherwise cease work (http://tinyurl.com/5aaqz7).” Several other notes and definitions are found here (http://tinyurl.com/2e73cwe) and the Legal Dictionary site definition is available here (http://tinyurl.com/2f8hh3m).

For those unfamiliar with the implications, the term legally specifies the freedom that both an employer and an employee have to choose to end the employment relationship at any time for any reason or no reason at all, so long as that reason does not violate a federally protected statute such as Title VII, the ADA, or some other federal mandate. At this time only the state of Montana has made statutory changes to the at-will clause with their “Good Cause” rule (http://tinyurl.com/34ujur3). So unless you live in Montana, what does all this mean for the uninformed and unassuming worker who is given the “at-will” reason for being terminated? A host of further questions bear scrutiny if the worker truly has been blindsided.

The hardest question for a fired worker to ask himself may be whether or not they really were putting forth their very best and being sufficiently productive according to their job description and expectations. Hopefully, a written job description exists along with documented goals and expectations, and hopefully the employer has been in regular discussions with the worker about their progress. This is a lot of hoping, though, and the sad truth is that a large majority of workers never see anything in writing about what exactly they are expected to do and how they are actually doing. The fact that many fired workers are truly blindsided can often be directly attributable to poor or nonexistent managerial communication and involvement.

An additional question that a fired worker must also ask is whether or not the termination followed the employer’s own employee handbook and past practices, because if the company handbook includes written statements such as requiring progressive discipline procedures for all terminations or that probation periods will always preclude termination, then the at-will clause may not apply so cleanly. Precedent is also a significant factor here, for if an employer is known to follow certain steps before terminating and then departs from their usual and customary actions in order to terminate, then again that employer may not be able to rely upon the at-will clause. Several more very good notes on this topic are available here http://tinyurl.com/27sz8ab.

Another question that should be asked is whether the employer is hiding behind the at-will curtain to disguise a potentially illegal or discriminatory action. In some organizations whose management operates on the premise that workers decline in their usefulness and value with age or ethnicity, these employers will sometimes quietly invoke the at-will option to systematically eliminate scores of protected workers with no one the wiser. So if a terminated worker discovers that their circle of work friends in their same age or ethnic or gender groups are also disappearing from that same workplace, there may be a class-action problem at work which should be addressed with qualified legal counsel. These situations can be exceptionally difficult to prove and emotionally devastating to pursue. But for those who have taken a stand against these injustices and won, the personal victory and the message sent to others are usually worth the pain.

But back to the at-will clause, sometimes it unfortunately means that if the boss is in a crabby mood today and because he really does hate the red color of your tie, you’re outta there. Shoulda worn a different tie.

Try explaining that one in an interview.

Nanci Lamborn, SPHR, is a freelance writer and a Senior Human Resources Generalist at a financial software firm based in Atlanta where any tie or no tie is welcome.

About BrightMove
BrightMove is a leading provider of Software-as-a-Service (SaaS) staffing software, recruiting software and talent acquisition solutions for staffing, Outsourcing and corporate HR recruiting.