Human Resource Management in the 21st Century

Jeffrey Harris Says:

Per the questions posed, “In your opinion, does the law provide the right amount, not enough, or too much protection for the employee? Is the law too intrusive into how businesses and organizations operate?”, I believe that the law itself is well balanced in protecting both the employee and the organization regarding fair treatment. However, the issues that may arise from termination “at-will” open multiple topics of interpretation including potential human resource (HR) and organizational development (OD) concerns.

Because of interpretation, ‘fairness’ is subject to individual perceptions of performance behaviors. Organization leaders may determine that highly vocal employees who express dissatisfaction or alternative points of view, are lacking in communication or adaptive skills which indicate a “poor attitude” and “disruptive workplace” style. Such behaviors are classified into buckets of organizational philosophies and ideals; conflicts that pose opinions contrary to these ideals may result in employees being deemed unsuitable or a poor fit with the overall organization’s environment.

I don’t believe that the law or constitutional protection acts may address these interpretive differences. Organizations may simply label the perceived, individual faults as performance issues (albeit, in a culturally diverse environment those same faults may be the propelling force for change improvement) and stretch, or exaggerate, the truth into self-serving rationales. It would be nice if legal precedence could be constructed to protect employees with differing perspectives, opinions, attitudes, or work styles, but that would be a monumental undertaking. Instead, in a capitalistic society, both the marketplace and the availability of jobs and employees help drive employee’s decisions to remain in certain organizations (or, choose to leave at-will), and enables organizations to determine whether they have the luxury to stifle differing ideas with intolerance (or, choose to devise termination at-will devises).

June 7th, 2008 at 11:02 am

Richard Castrillon Says:

I know here in California and where i work our companies lawyers tell we can still at will but be able to document why you at willed this person. It appears the courts out here are beginning to take a dim view of the wide spread abuse of the at will. Thats why they have said have paper to back it just in case. I would never just at will a person without cause I do have to look at myself in the mirror.

I am not a big fan of the at will as i do feel some out there abuse this.

June 7th, 2008 at 2:40 pm

Tammie Woodall Says:

I understand employment “at-will” however, what purpose does a progressive disciplinary process serve if an employment relationship can be terminated without giving the employee a reason? I would challenge if an organization has a progressive disciplinary and grievance process in place according to policies and procedures manual, that would in some way legally obligate the organization to justify why he or she is terminated, especially if the employee has been with the organization for a long time.

June 9th, 2008 at 10:06 pm

Gail A. Chandler Says:

The premise of an “at-will” employment status allows the employer an option through which it can rid itself of “C” Performers and employees with whom there may be dissatisfaction for any number of reasons, inclusive of those labeled trouble makers, disruptive in the workplace, and have poor attitudes.

I have witnessed managers rid themselves of “at-will” employees who were labeled disruptive, disagreeable, and had poor attitudes only to find themselves in the same “at-will” boat.

If the HR professionals and hiring managers are working together to fill positions, and if performance appraisals (where applicable) are applied fairly and always with documentation to justify the rating (one way or another), then why is there an on-going problem and challenge with the “at-will” employment status?

As an employer, if you hire with the intent of “just in case something happens” why bother? What a waste of resources - people and finance, time, and effort.

As I am sure that you have gathered by now, I am not a proponent of “at-will” status hiring and employment.

Some employers have a habit of making a mess and then rely upon the legal system through legislation to clean it up, fix it, and get me out of this!

The distinction between persons protected by statute (Title VII) and those not protected by the same statute creates a problem in and of itself.

Discrimination vs. reverse discrimination…

The interpretation of “fairness” is subjective and the courts certainly do not agree with one another.

Again, evaluate the employee performance, substantiate with supportive documentation, be cautioned about the “Liking” phenomena, and check with your legal eagles to ensure fairness, and sure footing if you do go to court.

June 10th, 2008 at 5:06 pm

Robert Says:

Thanks Jeff, Richard, Tammie and Gail.

Jeff- You wrote, “[I]t would be nice if legal precedence could be constructed to protect employees with differing perspectives”… While diversity of opinion is incredibly valuable to an organization, it can sometimes be seen as threatening. It is difficult to legislate intellectual tolerance and many would say inappropriate to do so. Shouldn’t an employer have the right to implement his/her own views as long as they are not discriminatory in nature and have the right to terminate those who don’t “buy-into” this vision? Richard makes a good point about self-governing behavior but fairness is difficult to legislate

Tammie and Gail raise an interesting question. Often attorneys use official policies, procedures and handbooks as a basis of showing that there were “implied promises”. They are a great source of exceptions to at-will employment. Courts are however hesitant to find implied contracts unless such policies, procedures or handbooks are very specific.

June 26th, 2008 at 7:32 pm

Espi Criscuolo Says:

Every employee must be able to reconcile their personal preferences with their employers “culture”. Assuming that discriminatory practices are not involved, within every organization, norms of behavior are known and expected. It is to the best interest all involved to ensure that proper pre-employment screening (i.e. is this person a good fit and is this company a good fit) to ensure that the company culture and expectations are known and agreed.

As Gail stated, it is a waste of time, effort, money and human capital to hire someone who will be terminated for not fitting in. Today’s employment market is too competitive to waste resources.

June 30th, 2008 at 8:58 am

Jason Rivera Says:

Espi hit the nail on the head. A competent HR dept. should be able to “weed” out the bad eggs or “C” performers during the interview process. I’ve seen too many times where someone was hired only because they needed someone (anyone).

I work in an industry where a majority of my company is unionized. If the interview process isn’t doing what it’s supposed to then potentially you could end up not being able to rid your organization of the “C’s”. The unions have protections in place that make it VERY difficult to terminate underperformers.

Personally, I believe that in all fairness one should thoroughly screen the resumes/applications to the point where it’s the applicants’ job to lose once they come in for the interview.

So, to answer Jeff’s original question (and I can only respond as unionized employee) I believe that there are too many protections in place whether legal or otherwise.

In a union environment it has become so difficult to terminate someone, that management usually doesn’t want to put out the effort or face the critism, and that’s wrong! (Although), I am still a week away from starting my first class here at Capella, so what do I know? I thought the topic sounded interesting. Just my $.02.

July 1st, 2008 at 10:05 pm

Robert Says:

Thank you Espi and Jason for your contributions.

July 2nd, 2008 at 9:48 pm

Isaac Dixon Says:

This is an interesting question and one that has certainly generated a good deal of discussion. How the law is interpreted is certainly a large part of what both employers and employees perceive to either be fair or not. Case law takes existing legislation and sets forth limits as well as direction about what the framers of the legislation intended.

Unfortunately, managers in the workplace tend to do the same thing with policies and procedures (as well as the law from time to time). For organizations this is the danger zone. Having policies that are clear and that are consistently applied are vital to ensuring fair treatment in the workplace. Additionally, rational, clear and well documented explanations are really the only way that terminations (including some at will ones) will stand up in court.

The idea of someone walking into to work being told they no longer have a job (for no particular reason) may be legal but in many states in the Union the action might land the employer before the state’s Bureau of Labor and Industries or a judge. As a society, we do not like the idea of people being tossed aside from something as important as their job thus many cases find their way to court when on their face they should not.

Be fair, be consistent and as much as possible be transparent,these are the best ways to avoid explaning your actions in front of a jury.

July 7th, 2008 at 3:33 pm

Melanie McConnell Says:

Like most of the posts I agree that the law can be used to exploit employees. At the same time the law can also be used to exploit employers and discourage employers from managing employees out. I believe it boils down to balance. The law is a guideline and should be represent the minimum acceptable behavior.

Companies should invest in the HR arm of the organization and make sure all of management knows how to assist the recruiter in screening out “bad eggs”. At the same time managers should also know how to manage people, not just duties. Coach, develop and mentor employees. Work to make sure they are a good fit and successful. No your employees will not agree with everything in the organization, but diversity of thought encourages innovation. As with the all things there are limitations and if an employee isn’t aligned with the culture of culture of an organization, it is in their best interest both mentally and sometimes even physically to seek a better environment.

In the end it boils down to documentation and being proactive. I suggest trying the following three steps. 1. Above all try to make informed hiring decisions. 2. Don’t wait for a problem to become unbearable. 3. When you see flags address them and manage them. I’m sure if companies spent a little more time on those three steps it would save time and money.

July 22nd, 2008 at 9:44 am