At Will Employment: A Case Study

In the previous post we defined what at-will employment is and examined some of the exceptions to at-will employment. At this point you might be saying, "Charity, discussing at-will employment is like beating a dead horse." I disagree. The term "at-will employment" is one that has been used so often that everyone assumes that we understand its implications, and we do not.

What happened to pique this interest in the "at-will" verbiage and disclaimers?  My partner, who I will call "Rufus" for the sake of his privacy, was injured at work. His employer sent him to an occupational health doctor who diagnosed the injury as knee strain. The doctor gave Rufus some pain relieving balm, told him to rest the knee, and sent him back to work. Two days later, Rufus’s knee had worsened and his employer sent him back to the same doctor. The doctor diagnosed the injury as "arthritis," advised Rufus to take ibuprofen for the swelling, and sent him back to work. 

Three days later, Rufus's condition was still worsening and his employer refused to send him back to the doctor because of the doctor's previous diagnosis. Rufus advised his supervisor that he was unable to perform his duties safely and effectively due to the knee injury, stated that he would seek medical attention for his knee, and left work early. 

Rufus didn't have insurance and decided to go to an urgent care facility the next day because it was cheaper than going to the emergency room. The next day Rufus called his supervisor and the site's HR manager 3 hours before his shift started to inform them that he was going to urgent care to have a doctor examine his knee and would be absent for the day. The urgent care doctor examined Rufus's knee and advised him that the knee was sprained.  The doctor advised Rufus that he could not stand for long periods of time and placed Rufus on work restriction for three weeks.

Immediately after the doctor's visit Rufus called the site’s HR manager to advise him of the work restriction. The HR manager advised Rufus that his employment was terminated due to "attendance" and refused to consider the circumstances surrounding Rufus's absences. Rufus had not been counseled or disciplined for absenteeism, he passed the post-accident drug screen administered by his employer, and Rufus had been clear that his absences were caused by his work-related injury. We then consulted with a lawyer who advised us that we had no case against the employer.

Why did the lawyer say that we had no case? After all, what the employer did should be illegal since it violated state laws regarding worker's compensation thus Rufus's case should be covered by the public policy exception. Unfortunately, Rufus needed to prove the employer's intent and was unable to do so. Rufus was fired due to excessive absenteeism and the reason for Rufus's absences was not documented. Simply put, Rufus could not prove that the employer fired him because of his work-related injury.

You might be asking, "What about the disciplinary procedures in the employee handbook? Wouldn't that pertain to Rufus's situation?" No, because Rufus lives in a state that does not recognize implied contracts. Lastly, it may seem that Rufus's situation was not handled in "good faith." While that assessment may be true, it does not apply to Rufus because he lives in a state that does not recognize the covenant of good faith exception.

What I hope you will understand is the fact that as an employee (or HR student), you need to be aware that the ability to leave one's job at any time comes at a price. It is up to you as an employee to understand what that price is and what your rights are before you agree to those terms. It is up to HR associates to explain the benefits and consequences of at-will employment to applicants and employees in plain language.

If you are interested in learning what your rights are, you can Google "[state name] labor department." Also, the U.S. Department of Labor offers a webpage, DOL Services by Location, which provides links to your state's labor department.

Thank you for reading, and best wishes.

Consultant's Recommendations for the Health of All

There are many instances when an Organizational Development Consultant's input is vital to the health of an organization, its constituents, and its employees. With our airwaves, from coast to coast and border to border, being bombarded with news of the horrors of King-Drew Harbor General Hospital, it became mandatory that the knowledge I have regarding the facility, through experience and observation, be delivered to those responsible for its governance. On the last Tuesday of the month, the Los Angeles County Board of Supervisors Hearing is open to public comment and testimony (during debate on agenda items) for the Board's consideration before taking a vote on the measure before them. It was time for me to address the body and, during public comment, deliver the information I have.

The Supervisors' concerns focused on having a community emergency care facility in the community. More importantly and especially in light of the shocking story of Edith Isabel Rodriguez, who was allowed the die in the triage area, a safe and competent emergency care facility. To close the facility would cause multiple, grievous hardships on the population and drive up numerous infrastructure costs as well as costs to human lives.

The Supervisors asked many questions of their experts and counsels. They examined numerous documents while in chambers and drafted motions to address the issues and needs before them during session. They acted as a team, as a collective body focused on a single mission. Among the considerations were the alternatives that would be available should the hospital's license be suspended compared with revoked. Also among the considerations were the impact on nearby emergency room facilities, ambulance service, waiting time and so on, should the license be suspended, revoked, or the facility closed. The only view was with regard to multiple failures in the emergency area.

Public comment came after more than two hours of Board deliberations. The sister and brother of Ms. Rodriguez were allowed to address the body. Ms. Rodriguez's siblings emphasized the need for those who need to use the facility in the future know that they will be treated with human consideration and not disregard.

Many others spoke before my name was called. They had very relevant words to add to the picture and things to be considered in regard to emergency care. Some offered their services as resources for evaluating and replacing existing staff. Some had prepared statements as written in briefs that were left for later review but accompanied verbal testimony or comment.

I spoke, not as an emergency care recipient but as a person sent to the facility for routine testing and evaluation and as an independent observer of the conditions at the facility. Those observations showed that the problems with the facility are not isolated to the emergency care. Instead, the issues are systemic.

The Board spoke of having gone through the facility some years ago and discovered they had people who simply did not know their jobs, They were the "F performers," as Yaroslovsky put it, but they didn't get rid of the ones doing D- work. Apparently he spoke of emergency room performers. In my interface with the facility, I discovered staff people who could not tell a constituent where a department or room was located or in which wing of the building they should go to reach it. A technician who saw a patient on one day and injected them with imaging dye did not, on the next day, remember that they had injected that same patient. They then wondered aloud at the puncture wound. Yet the workload was not so high to have caused that level of forgetfulness. And one department had three out of four attendants who appeared to be on heavy anti-depressant medication yet all seemed to be equally responsible for patient management, records, and dispensing of instructions. They did not appear to be in a condition to do these functions unsupervised.

A hospital is a building, nothing more. The things that differentiate it from any other building are the equipment, the personnel, and the type of business it does, and how it does that business. Every part of the facility that I saw was immaculate as far as cleanliness. All of the equipment and machinery that I experienced was in good working order. This relates to the general facility. I did not experience the emergency room nor that area.

While the emergency room at Harbor General is in dire condition, the issues that impact the hospital are more profound. It is the hospital staff in general, the people who work there, who need the evaluation. This is the job of the Human Resources department -- the place where the recruiting, testing, screening, hiring, training, retention, and promotion activities take place. The Human Resources department is also the place where determinations about who needs to be given leave of absence until fit to return to work and perform in a reliable manner, how long that leave should be, that does this type of review. Yet it appears the Human Resources department is not capable of fulfilling those responsibilities.

It also appears the recruiters who are part of the Human Resources department are not capable of finding the qualified talent that can deliver on the promises to the community -- safe and competent care provided by qualified talent at all levels. This is something very important to Supervisor Molina. She wants to know that if she takes her mother to that facility, that her mother will receive competent care and that her mother will be safe.

The Rodriguez siblings made an excellent point during their opportunities to speak. People who use the facility are treated as though they are fungible entities, not human individuals entitled to human rights and dignity. For the most part, it appears the treatment is because people who seek treatment at that hospital are viewed as the poor and indigent because their either have no health insurance or are extremely under-insured. Compounding these indignities, it is apparent in many instances that the constituents are also viewed as being the stereotypical representative of their perceived race and therefore treated as the lowest common denominator of life.

Although one-on-one conversations with facility personnel had polite and humane sounds, there were many subtle suggestions in the way things were said or the terminology used, that the individual held the belief that the constituent was merely another of those in the baseline population. The condescensions were ignored in deference to learning more about the primary issue.

So in my capacity as an Organizational Development Consultant, it was possible to deliver information and testimony to the Board of Supervisors that was sorely needed in order to make a more informed decision about whether to close King-Drew Harbor General Hospital or keep it open. It was possible to bolster their findings in order to also help them determine which alternative is the more advantageous, license revocation or voluntary suspension. And with that bolstered information, they will be able to make deliberate in anticipation of a vote that is in the best interests of handling the issues of the hospital, the community it serves, as well as the impact on surrounding communities and populations.

It was good to once again work with a long-time professional friend. It's always good to be immediately recognized and acknowledged even after nearly a decade of absence in association. Finally, it was good to return to my indigenous state in doing public speaking and address in order to inform, educate, and persuade.

Bending the Rules

That Mullins case, where the fellow lost three jobs for essentially the same sins -- cheating on expense resports and forging chits in order to get reimbursed. It was found that he cost the state and taxpayers more than $6,000 in false expenses.

Now it could be argued that $6,000 is a paltry sum, especially when governments are spending millions and billions in dollars. Why would they bother with something as small as $6,000? Because it adds up, is one reason. Because this fellow was chronic at it is another reason. Because he admitted to having lost two previous jobs for the same types of acts. Because eventually the public absorbs these frauds in the form of higher prices of goods and services while wages stagnate.

Additionally, Mullins brings up so much in the area of ethical practices. It brings to mind several case studies that will be touched upon in this writing. Eventually, they'll be drawn out a bit more. But today I want to consider some of the tangents to Mullins and consider whether the rules should be bent in some situations. We need to think about whether rules are written in stone or whether their interpretation is governed by the extenuating circumstances.

Padding the Account

First, Mullins admitted to padding his expense account and cheating on expenses. He made long trips outside of his district that appeared to be not related to his work at all, yet he charged the mileage and associated costs to his expense account.

How many have used the trip to the conference as an excuse to have a family visit and charged all of the costs back to the company, without making an effort to parse out which was actually business and which was social? I remember having a very long conversation with a friend some 25 years ago who bundled all of the costs and thought nothing of charging the company for the entire package. Her thinking was it would be dumb not to do so. Why should she incur the cost when she was already there and probably would not have gone except for the company business. So she just stayed a little longer and had the company pay for the extra time.

But this also brings up a comment in an article I read recently. It encouraged managers to go out of their way to increase morale by buying some special treat for the entire department and then charging the cost to miscellaneous expenses or the stationery budget. Pizza for the department isn't two packages of paper. Dinner at the Thai restaurant isn't toner for the copier. Maybe there should be an office morale or a discretionary spending allowance.

In thinking about that advice, I remembered the Executive Manager of a nonprofit who started off very well. But as time passed, the monthly financials received by the Board started showing strange charges to expenses that were out of proportion. Unfortunately, the Board ratified (not unanimously) having one of the Directors also serve as the Treasurer as well as the organization's accountant. He, for some reason, did not see the strange charges. As it turned out, the EM was pulling money from the organization. After a huge scandal and a very long and thorough investigation by the City Council, the EM was asked to resign.

But the Treasurer and the other Directors should have seen those monthly expenses and asked more questions. And after the second month of questionable expenses, it seems the Treasurer/Accountant/Director should have resigned from two positions.

Hotel Stays

Mullins stayed overnight in cities and forged hotel receipts but he actually slept in his car and incurred no hotel expenses whatsoever.

Would this still be considered unethical if instead of Mullins it was a friend of his who had lost his apartment and needed a place to stay for a short time until he could get his bearings? Would Mullins have needed to get authorization to help out his friend? It was a benevolence. Should we leave a friend to the wolves because we can't fudge on the expense account?

Another Example

There was a case of a woman who was suffering domestic abuse. She siphoned funds out of the company expense account in order to help herself manage. When she was discovered, the matter was shushed up. She was hired as a manager at another high profile company but not put in charge of finances. When there's domestic abuse or some extraordinary circumstance, should an exception be made?

About the Rules

Rules and standards are made for a reason. Should they be bent under certain circumstances? How compelling should the situation be if the answer is "Yes" or is the answer always a resolute "No?"


Business Background Checks

Where Does Money Come From?

Those of you who are parents (or aunts or uncles) have probably heard the question from the youngster on the order of, "Where do babies come from?"

You look around the room, blink a bit, speculate about how far back in the process you should go or whether you should just gloss over the entire thing, a la stork story, and then seize on a direction and follow it.

How many youngsters ask, "Where does money come from?" or "How do we keep all of this stuff we have here?" or while in the store, "Can we pay/afford this?"

Where does money come from?

We talk about the trained workforce, the one that asks the critical questions and either knows the answers or else knows how to find them. But do they have a sense of cost of business and economics? It appears to our youth (and some adults, as well) have the impression that money is simply pulled out of the air. If it's needed, it will appear from some invisible source and line the bank account. The impression is also that they believe those who have it (money) have an ever-lasting supply of it.

What's disheartening is that even when the "deep pockets" says there is no budget (or sponsor, or funds), the words seem to be brushed off like a bad case of dandruff. The overuse, misuse, and cavalier depletion continues. The appearance is that there is an acclimation to having wants and demands catered to without heed to the sacrifices necessary to accommodate the unearned reward. Unfortunately, they are oblivious to the evidence of sacrifice; the demands and expectations simply continue or increase.

Where does money come from?

More importantly, we need to develop a future workforce that is mindful of the answer and appreciates what it takes to earn the revenue. Actually, the development needs to start at a time that is not somewhere in the future. The development can and should start now, today, with our present workforce. And it is entirely possible to do this without allocating funds and time for a tremendous training program.

It's too simple. It's a bit like the purloined letter.

Each supervisor has a team of workers. The team should be made aware of what the goal is and what it costs to make goal and still have a profit. Where project profit is not easily measured because it's loading or packing widgets, there's another solution to encouraging time efficiency and therefore profitability. Structure some type of informal competition to measure who can pack the most within a certain time frame without incurring an injury. Then focus on those members' exceeding their personal best. Delta Environmental Consultants seems to have gotten the formula with their development and retention strategies.

There have been companies that were about to go under. Delta Airlines is a prime example of that situation. Rather than lose their jobs, the employees rallied. They focused on where the costs were and what it would take to save the company. The employees decided to become the owners. The result: the employees are still keeping the planes in the air and the customers happy. The employees are making some tough choices under sensitive circumstances. But they're still flying. The point is, the employees developed an appreciation of where the money comes from and how to make it stretch to cover the needs, make a profit, and not kill the cash cow. Rather, they need to learn how to make their department the cash cow.

With proper on-the-job training that includes cost and profit awareness, efficiency, appreciation of goodwill, and the importance of repeat business, it is definitely possible for us to reverse the forecast of a qualified talent drought in 2010. Any one of them will be able to answer the question, "Where does money come from?"

training, value of money, value of time, organizational development,
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The Jobster Question

Last week I talked with Jason Davis. "I'm planning to write something about the Jobster layoffs after I've researched the subject. You won't take offensse or feel like I'm making a personal attack if I do so, correct?" We agreed that I have the right to do my work without concern for retribution from those who suffer paranoia.

So I went into reporter mode for a few minutes and probed for a good quote. "How do you feel about this news coming out that Jobster is going to lay off so many people?" Jason is great. There wasn't a second's hesitation. He went straight for the answer, "I hate to see anyone lose their job," was his reply. Good PR answer. Good answer. Whether someone coached him on what to say if asked or whether he's been through this probe so much that he's primed to respond in such manner, it was the right answer to have.

In striving to collect the facts, in searching the Web for the news of what's going on at Jobster, I discovered there's lots of blogging (which, as far as I'm concerned, is opinion), a couple of snippets here and there of information, and little else. So I'm still left the way I started. I have opinion, observation, and conclusions based on the same.

Sometime during the summer, John Sumser wrote about Jobster and its lack of identity. He essentially commented that the business seemed to morph at various, continuous junctures. To ask "What is Jobster?" or "What does Jobster do?" was to ask an unanswerable question. No one had an answer and they sort or (literally) tap danced away before getting to any point. As the company took on and absorbed (or merged or acquired) another business, it could arguably be said that they were in that business. But they were not. Over the past two years (that is, from 2004 to 2006), I've asked a few of the company's representatives to talk with the Los Angeles Metro Recruiting Network during either one of their monthly online meetings or else at one of the quarterly live meetings. Each representative sort of disappeared and a substitute had to be found. It isn't clear if that means during those periods they had no identity and rather than admit as much, they simply chose to not speak.

Whatever the case, Sumser and I agree. It's difficult to say what Jobster's identity is. How can an outsider define them when the internals can not? So it shouldn't be a surprise that Jobster is talking about profitability for 2007 and layoffs of 41 people, looking for C-level replacements, and doing maneuvers that indicate restructuring.

some of the current barbs about Jobster relate to the corporate attitude. This also seems to be a pretty consistent observation. The evaluation that comes up most is the smugness of the people, from the top, down. When you're a start-up, it's healthy to have a lot of confidence in order to have the strength to carry on through difficult situations. There's a delicate balance between confidence and smugness. It's better to err on the side of humble and accommodating in order to retain goodwill, customer relations, and public appeal. But the criticism is there and to some extent, it is verifiably legitimate. There's time to fix that.

So what does Jobster have to offer that sets it apart from others? I decided to give them a test drive. I signed up for an account. Pretty snazzy site. Very clean looking. A few places where you stumble. Interesting attributes. It is a social networking site. It appears its focus is creating a profile so that the passive job seeker can connect with viable opportunities and the active job seeker can connect even more readily.

It is possible to create your profile of interests, location, contact information. You can upload your resume. You can connect with others on the site by sending an invitation to network. Here, Jobster is very much on top of their job. They have their employees connect with new registrants to say they want to connect. But when you have four Jobster employees invite you to network in three to five days and no one else contacts you within two to three weeks, the likelihood of this being a good place for results begins to dim.

The list of potential employers who are connected to the site is short. Some, such as the L.A. Times, are going through major layoffs. Some are relatively unknown. That is actually a positive because there won't be as many people inundating the employer with resumes and queries. What is left is to do the proper research.

Getting oriented in the community was interesting. There were questions that could be answered that were basically like questions fielded at a cocktail party. They were not from anyone in particular. They were simply questions randomly spat out at the user by the algorithms of the site. Unfortunately, the questions didn't have a lot of relevance to disclosing significant things about the user. Most likely no one cares how meticulously I keep house or scrub my pots and pans. I doubt that whether I listened to any music yesterday will make me better at something or worse at it. What I'm saying is the questions were a little senseless. I lost interest in responding to them after reading about four. There are hundreds.

My experience with the trial membership was around early November. I cancelled my membership after three weeks or so. That was also interesting. There's no way to cancel the account. But the person who responded to my "Help" request was polite. They wanted to be certain that I truly wanted to cancel the account and assured me that I was more than welcome to return at any time in the future. I like people who are polite and efficient.

During Blog Swap I, Jason (as in Goldberg) contacted me for some comments that were to be used on his blog. There was a timely response from all of those he solicited. Mine got lost. I resubmitted. It never got published. It appears my response was too much of the same as others. But that's something that starts to impact users of a networking site -- lack of responsiveness. If the pattern continues and over a protracted period of time, you get back to the impression of smugness and that there's little to no value in the connection or the person.

When there are no answers about what a company does, it begins to appear that there's a reason for the secretiveness other than lack of information and an accurate focus. When there are no answers, the spectre of being untrustworthy rises. If there were initial questions in the back of the mind of one who is not popular with the site, then their discomfort begins to be confirmed, even if inaccurately so. One can preach and shout "transparency" all the day long but when there are no answers, there is no transparency. Try the adjective "occult" instead.

We are struggling to survive one of the worst economic depressions in the last 75 years. I still call it the New Millennium Depression. Our President keeps manipulating our economic tools in order to create a false recovery. Thus, we are continuously struggling to make the best of being survivors of the Dot Com Bust. Just when you think you've got things under control, like yeast bread, something pops out somewhere else. In this regard, I'd say Jobster is going through a spontaneous start with little planning. It's been changing course at many junctures in order to find its niche. And in the process, it's been spending.

It's time for the start-up to grow up. It's time for the start-up to stretch through adolescence. I believe it will get its bearings. Meanwhile, at least one worried employee attests to having found the best employer they've ever had. No doubt they'll be able to repeat that accomplishment many times over and in short order.

Jobster, corporate evolution, corporate identity, layoffs, restructuring,


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