At-Will is Not a Panacea: Instead Focus on Managing for Success
DISCLAIMER: Before I start this post it’s important that I add the disclaimer that I am not a legal professional. Therefore, managers and organizations should seek the consultation of their in-house or external legal counsel for employment law advice.
What I can, however, offer as a Sociologist and Senior Human Resources professional is twofold: 1) my perspective on the confusion of some managers about what at-will status really means and 2) a suggestion of a better proactive management approach than focusing on at-will status.
Understanding At-Will Employment (The Cliffs Notes Version)
Let’s start with clarifying some of the confusion around at-will status. The barebones of at-will employment is that an employee can leave his or her job for any reason and without notice and an employer can likewise terminate an employee without cause or warning. However, this is misleading, because there are a number of reasons why you can’t just terminate your employee. At-will employment law should actually read, “An employer can terminate an employee without reason or warning, except for reasons 1-100”! I will let you do the research on recent wrongful termination cases for examples of such exceptions. Two of the more common reasons seen in termination lawsuits are retaliation and discrimination.
At-will law does not condone all forms of treatment or dismissal of an employee. In fact, the presence of the law actually reifies the importance of good management. How you manage and treat your employees throughout the employee lifecycle matters. The Susan Fowler Uber blog post that opened up a legal investigation into Uber’s management practices highlights this point.
How you manage your employees matters not only from an ethical standpoint, but also from a legal standpoint. The management experience of employees influences both the likelihood and the merits of a lawsuit.
Managing for Success
Managers often bring up at-will status as a solution when faced with an underperforming or difficult employee. The problem with over reliance on at-will status is that it can subconsciously diminish the manager’s participation in the employee’s success. It’s been my observation that the gravity of the employee issue and the legal risk of an employee exit, if things don’t work out, can be abated if managers focus less on the at-will option and more on managing for success.
Managing for success is a management approach where managers take personal ownership for the success of their employees from day one. This approach involves active coaching, active listening and appropriate resource allocation to set employees up to do well in their roles. If you manage for success you create a better employee experience overall, increase the likelihood that the employee will be successful and potentially lay the groundwork for a negotiated exit if things do not work out. Managing for success actively demonstrates to the employee that you are invested in their success.
Below are three suggestions for managing for success:
Set clear expectations for your employees from day one. Many managers view the initial employment period as a honeymoon or adjustment period. While the employee may be adjusting, giving clear guidance on role expectations early on provides a roadmap for success.
Provide real time and regular feedback (“See It, Say It, Write It”). I have a coaching strategy that I developed that I like to share with my managers – “See It, Say It, Write It”. The idea is that when you see either good employee performance or performance that could benefit from additional guidance, provide real time verbal feedback. Then reiterate your feedback via email. Reiterating your feedback gives the employee two opportunities, both verbal and visual, to absorb the feedback – because not everyone processes feedback the same way.
Be mindful of your blind spots. Managing for success also requires that the manager be self-aware and mindful of how what I refer to as the core impacts their management behaviors. Knowledge of the core helps to assess conscious or subconscious biases that may impact how you interact, treat, reward or promote your employees.
At-will status is not a panacea and over reliance on it can actually do more harm than good. Managing for success is a much better option for everyone involved – the employee, the manager and the organization.