Rethinking the Communication of Employment-at-Will: What to Do?
Borstorff, Patricia, Hearn, W. Mark, Journal of Organizational Culture, Communications and Conflict
Organizations are currently facing a staffing drought, unlike any that has been seen in recent years. Unemployment rates have fallen, and the numbers of newly created jobs and wage rates have increased while fewer people are entering the job market. The confluence of these trends requires an increased vigilance in the process of attracting and recruiting potential employees by organizations (Saltzman, 1997).
The attraction and retention of the best and brightest workers require organizations to develop and use effective recruiting materials when communicating with prospective employees. However, to protect themselves from litigation resulting from employee claims of wrongful discharge, up to 60% of employers in the United States have incorporated into their application forms and other employment materials strongly worded employment-at-will disclaimers (Figure 1).
Potential employees may perceive these statements as offensive or threatening. By using language designed to afford post-employment legal protection, businesses have risked offending, and in some cases, discouraging the very applicants they want most to attract. Companies may need to rethink their policy of using strongly worded employment-at-will disclaimers especially in tight labor markets. Relatively little research has examined applicants' reactions to selection procedures and several authors (Schwoerer & Rosen, 1989; Wayland, Clay, & Payne, 1993) have called for more research on applicant attitudes about selection methods and practices.
This article seeks to provide guidance that will lead to better informed decisions in evaluating one's employment-at-will philosophy and practices. To do so, we will first review the current status and legal considerations surrounding employment-at-will. We examine the reactions, perceptions and evaluations of potential applicants to the communication of employment-at-will disclaimers. Factors to consider when using at-will disclaimers, such as the language, prominence, and placement, are presented. Finally, possible alternatives to the direct communication of at-will are offered.
Employment-at-will generally is defined as the right of the employer to terminate an employee without giving a reason and the right of an employee to resign when he or she wants. Some 78% of American private-sector employment relationships are said to be "at the will" of the employer (Summers, 1996). To protect themselves from litigation resulting from employee claims of wrongful discharge and to communicate their "at-will" status, employers in the United States have incorporated into their application forms and other employment materials strongly worded employment-at-will disclaimers.
Recruiters, human resource managers and executives not only acknowledge the current scarcity of skilled workers, but also predict that the situation will intensify in the next three years. This tightening of the labor market encompasses a wide range of workers: those with a technical background or MBA; constructions tradesmen such as electricians, carpenters, pipe fitters; and, secretaries. And, these shortages are being translated into higher wages. In May 1997, hourly wages, as reported by the Labor Department, were up 3.8 percent from the year earlier (Schlesinger, 1997). Other reports indicate that significantly larger increases are being given. Even hourly workers with minimal skills can find positions that offer signing bonuses, flexible hours, and opportunities to advance. Some manufacturers are so strapped for workers that they are reducing hours, but not pay--effectively increasing the hourly wage--to attract the people they need. (Saltzman, 1997)
The phenomena of higher pay and tighter labor markets should lead to more intensive managerial attention to the recruitment and selection of employees who are loyal, motivated, and contributors of the extra effort needed to counterbalance the resultant squeeze on profits. …