Employment at will (EAW) is a concept that did not exist at one time in America’s past. In 1877, Horace G. Wood articulated the doctrine in A Treatise on the Law of Master and Servant. The concept of EAW must be placed in historical perspective. In the post–Civil War era, the Industrial Revolution went into full swing, and with it came a strong demand for labor. Before that, labor demand was limited, and a national employment policy was practically nonexistent.
The concept that employees must be free to end their employment had equal weight with the similar right of an employer to end the relationship, with or without cause. These symmetrical rights were accepted in courts and in practice, and remain in varying forms in most states today.
Over the decades of economic and population growth, social change, and the legal seasoning by courts and legislatures, the doctrine evolved state by state and nationally, in terms of unionism and federal law, as well as in limitations, clarity, and applicability. There are states in which a private sector nonunion employer will experience significant difficulty when trying to terminate an employee.
Even in states where EAW is generally embraced, there are still exceptions to this doctrine. These exceptions include:
The employment relationship continues to evolve. Indeed, there are strong opinions on either side of this doctrine. Some believe that EAW is a defective concept in the modern economic and business climate. Others believe in a more laissez-faire spirit, and prefer to rely on the courts to resolve employment terminations that are thought by one party to be wrongful.
Medical practices in the private, independent setting should review their human resources manuals, policies and practices, contracts, statements in job advertisements, comments on performance appraisal documents, and even verbal communication with employees if they wish to remain “at-will” to the extent feasible, given the climate in their state.
Although we all want every employee to be engaged, and to have his or her focus and efforts aligned with the values and mission of the business, there may come a time when that alignment begins to drift apart.
Terminating an employee involuntarily is not something to which any manager looks forward. When it does become necessary, it is important to be in a position to exercise what rights and obligations the employer can control within the prevailing law of the land.
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