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At-will employment refers to a doctrine outlined in the American law wherein either party in an employment relationship can end it at any time without the need of prior warning and no ensuing liability (Cihon & Ottavio, 2010). At-will employment doctrine is only valid on condition that an express contract governing the employment relationship for a defined period does not exist, and that the employer is not a member of any collective bargaining group. Under the at-will employment doctrine, any form of hiring is assumed to be “at-will”, which means the employer has the liberty to dismiss his/her employees for either bad cause or good cause, or no cause at all. Similarly, the employee has the liberty to quit without any prior warnings and ensuing liability (Dipanwita, 2007). This paper researches the history, relevance, strengths, weaknesses and the current trends of at-will employment.
Overview of At-Will Employment
As mentioned above, at-will employment doctrine presumes that employment is indefinite and can be terminated by either the employee or employer. This has been the historical approach that US courts have used as regards interpreting the relationship between employees and employers. Owing to its disparate bargaining power between employers and employees, critics of the at-will employment doctrine have cited its overly harsh outcomes and have resorted to advocacy for unions to represent employees in order to make even the bargaining power between the employer and employees (Halbert, 2012). By the end of the 20th century, US courts incorporated a number of exceptions in the at-will employment doctrine. For instance, the public policy exception to at-will employment prohibits an employer from dismissing employees in violation of the cases where the termination amounts to a violation of the state policy. The implied contract exceptions stipulate that employer cannot dismiss the employee in cases where an implied contract was agreed upon between both parties. However, the burden of proof for an implied contract rests with the dismissed employee (Halbert, 2012). The covenant of good faith and fair dealing exception to at-will employment implies that employer decisions should be guided by a just-cause standard and prohibits dismissals that are made out of malice or bad faith. In addition, there are statutory exceptions to the at-will employment doctrine, which refer to state’s statutory protections for employees aimed at avoiding wrongful termination such as termination based on discrimination.
Much criticism has been directed at the at-will employment on accounts that the doctrine is based on flawed assumptions regarding the distribution of information and power between the employer and employee, and the fact that at-will is overly harsh towards employees. It is a fact that at-will doctrine is broad and that its limits on employers and employees are not defined clearly. In addition, regardless of protections posed by exceptions, at-will doctrine still grants the employer more power since the burden of proof for a violation of these exceptions rests upon the employee. On the contrary, a number of law and economics scholars have applauded the at-will employment doctrine as a core factor underpinning the strength of the United States’ economy. In addition, at-will employment has always been considered as a critical success factor for Silicon Valley’s success as an entrepreneur-friendly environment (Twomey, 2009).
Towards the end of the 20th century, several states abandoned the at-will employment doctrine. At the same time, efforts to protect employee rights under employment relationship saw the development of alternative theories such as property law, contract law and tort law increase, which resulted in a steady decline in union membership, particularly in the private sector (Ford, Notestine, & Hill, 2000).
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At-Will Employment at Google Inc
Google is one of the firms in the United States that has at-will employment clause in its company policy as a means of harmonizing the relationship between employees and the company. In fact, Google is one of the Fortune 1000 companies based in Silicon Valley that have benefitted directly from the use of at-will employment in its clause. It can be argued that Google has managed to attract the top talent in the IT industry because of its friendly HR policy, which has also been facilitated by incorporating at-will employment. The outcome of incorporating at-will employment in HR policy is that it creates a working environment wherein employees are comfortable. According to Cihon & Ottavio (2010), Google HR policy, especially the at-will employment clause, plays a significant role in pulling the best technological talent available in the market. In addition, it fosters motivation, which is the company’s strategy behind its success.
Another potential benefit associated with the at-will employment in Google is that management can ensure that it only retains employees deemed productive and can opt to dismiss employees who are unproductive without any legal and economic liabilities. This is a strategy that Google can use to ensure that its employees are productive at all times and committed to achieving the company’s goals and objectives. To the management, at-will employment eliminates the risks associated with hiring unproductive employees. For instance, Google has the right to terminate any unproductive employee on grounds that the employee’s performance, skills, competence and abilities do not match the requirements of the job position. On legal grounds, any firm has the right to dismiss an employee if there is sufficient evidence to prove that his performance is below the requirements of the job. In addition, the at-will employment doctrine will provide a basis through which Google can take disciplinary actions during cases of violations of the firm’s policy.
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