At Will Employment – What Is It?”At Will” employment is the term used for the basic employment adage that an employer can fire any worker for any reason or for no reason at all… for good cause or bad cause; an employee is employed “at the will” of the employer and the employer determines how long to employ a worker.Employers need to be aware that legislation and court decisions in a number of states have eroded employment at will. Courts and legislatures are finding reasons to require just cause — a rational business justification — before employment is terminated.Employer BewareEmployment at will is an endangered species.Many employers do not realize that an employee handbook with ill-conceived company policies may be the one instrument that erodes at will employment the most.In using company policies not properly written or where disciplinary steps are outlined, the company policies may inadvertently hold out the promise to employees that employees will remain employed as long as performance is satisfactory.For years a number of courts in various states have sought to erode at will employment through the legal theory known as “Implied Contract.” These courts have found that improperly written policies in an employee handbook create an “Implied Contract” of employment.Implied Contract means that as a result of an employer’s conduct, an employee has an “implied” contract with the employer requiring that an employee’s discharge be based on “cause,” such as an employee’s wrongdoing or inability to perform the job. Courts frequently look at the company’s policies in making such a determination. It is most important that company policies and other wording in your employee handbook be properly written in order to maintain at will employment.A specific disclaimer in the employee handbook can preserve the at will employment relationship in the face of an employee’s Implied Contract claim. Not every disclaimer will have the desired effect of maintaining at will employment in the workplace. The disclaimer is best written by an attorney skilled in employment law.A business, profit and not-for-profit, must use an effective employee handbook with policies crafted to protect employment at will.Characteristics of an Employee Handbook Written to Protect Employment At Will1. The company policies in an employee handbook should be written by an attorney skilled in business and employment law.2. Your employee handbook must be written to comply with both state law and federal law as many employee claims occur in state courts under state law.3. The company policies should be easy to implement, and in plain English.4. A Spanish version should be available for profit and not-for profit organizations that have employees whose primary language is Spanish.5. Proper language protecting at will employment must be clearly evidenced throughout the Employee Manual and in an employer’s day-to-day-operations.6. In Puerto Rico, “Just Cause” is required before an employee can be terminated. If you are an employer with operations in Puerto Rico, your Puerto Rico Employee Manual must have a policy on Just Cause Termination.7. As an employer, you must keep your employee manual up-to-date. State and federal laws frequently change, so must your company policies.Another step that employers can take to protect employment at will is to use pre-employment documents such as applications from employment, an At Will Employment Agreement and other HR forms and legal forms that reinforce at will employment.ConclusionWhile no one can guarantee that in any particular situation, a court or legislature in a specific state may seek to avoid at will employment, the steps outlined in this article will help businesses and not-for-profit organizations maintain at will employment.
It might seem obvious that one of the primary criteria used to determine whether an individual is eligible for Unemployment Compensation is for that individual to have been actually employed by the perceived “employer” he was “working for” before his/her separation from said perceived employer. Although colloquial parlance equates “working for” someone/something with employment, Unemployment Compensation Law makes a distinction between those who “work for” someone/something under an employment relationship and those who have an independent contracting relationship. Consequently, when an individual applies for and is denied Unemployment Compensation, he may be shocked to learn that his denial is due to the fact that the person/entity he had been “working for,” for however long or short period of time, was never actually his “employer”. While some may say that this distinction appears to be mere hair splitting, its impact on whether an Unemployment Compensation claimant is granted or denied benefits is ultimately dispositive. That is, an individual who has an independent contractor relationship with an individual/entity is not eligible for Unemployment Compensation benefits if that relationship is terminated. It matters not whether the contracting relationship was terminated for “cause” or was “voluntary” – the mere existence of an independent contractor relationship renders the potential claimant ineligible for benefits. Therefore, it is crucial to know and understand the distinction between employment and independent contracting in the context of Unemployment Compensation and this article will lay out the criteria for the definition of independent contracting as it applies to the collection of Unemployment Compensation benefits.Under Pennsylvania Unemployment Compensation Law, if one is an independent contractor, then one is considered to be self-employed. Although the statute defines neither independent contractor nor self-employment, the statute does define “employment” essentially as follows: ” [s]ervices performed by an individual for wages shall be deemed to be employment subject to this act”. 43 P.S. § 753 (l)(2)(B). The statute continues, establishing basic guidelines as to what employment is not: “[one is deemed employed] unless and until it is shown to the satisfaction of the department that–(a) such individual has been and will continue to be free from control or direction over the performance of such services both under the contract for service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753 (l)(2)(B).While describing what employment is not, the above quoted basic guidelines, conversely, establish the essential criteria for self-employment (i.e. independent contracting). Consequently, the Pennsylvania Courts use the following two-part test to determine whether an individual is self-employed (i.e.: independently contracting): (1) whether the claimant was free from control and direction in the performance of the work; and (2) the business is one that is customarily engaged in as an independent trade or business. (Venango Newspapers v. Com., Unemployment Compensation Board of Review, 158 Pa. Cmwlth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993), holding that where claimant did not receive on-the-job training, supplied his own tools and had no taxes deducted from the sums received, claimant was not an employee.) As the claim that an individual is not an employee but rather an independent contractor is essentially an affirmative defense made by the alleged employer against the claim for benefits, the alleged employer generally has the burden to prove that the claimant is not an employee.To determine whether an individual is free from the control and direction of an employer in the performance of work, the Pennsylvania Courts frequently look to eight factors. No one factor is determinative as to whether an individual is an employee or independent contractor, and the Court generally considers and weighs all eight factors in the employment relationship.The eight factors considered by the Court are as follows: first, the Court examines how the job was performed. Specifically, the Court is more likely to decide that an individual is an independent contractor if he sets his own hours, creates his own work/task agenda, and/or decides how many other workers are needed for a particular task. Second, the Court looks at whether there was a fixed rate of remuneration. Who decides the cost of the services being provided? Who decides when/if raises are granted? A worker who establishes his own pay rate and decides when his own pay rate increases or decreases is functioning more like an independent contractor than employee. Third, the Court notes whether taxes are deducted from the claimant’s remuneration. The Court is more likely to rule that a worker is an independent contractor if the worker receives a 1099 form and is able to deduct expenses and be responsible for paying his own taxes. Fourth, the Court also notes whether the alleged employer supplies the tools necessary to carry out the services being provided. If the worker must provide and use his own tools to carry out his tasks, the Court is more likely to rule that the worker is an independent contractor. Fifth, the Court ascertains whether the alleged employer offers on-the-job training. If an alleged employer provides on-the-job training, the Court is more likely to rule that there is an employment relationship. Sixth, the Court discerns whether there were regular meetings with the alleged employer. Regular meetings generally will signify an employment relationship. Seventh, the Court inquires into whether the claimant suffers risk of loss when claimant’s expenses exceed income. In other words, if the business fails, will the alleged employee merely lose his job, or will the alleged employee have the responsibility to satisfy the business “potential creditors If the alleged employee merely loses his job, and has no responsibility to address the business’ creditors, then the Court is likely to rule that he is an employee rather than an independent contractor. Eighth, the Court investigates into whether the claimant was compelled to look only to the employer for further employment. If a worker regularly sought and/or acquired the same or similar work from other sources, while already engaged with an alleged employer, then the Court is likely to rule that the worker had independent contracting relationships with his “employers. See, e.g., Venango, 157 Pa. Cmlwth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly v. Comm., Unemployment Compensation Board of Review, 107 Pa. Cmwlth. 261, 528 A.2d 294 (Pa. Cmwlth. 1987) (holding that claimant was self-employed where claimant was paid a lump sum for his performance, and he was not compelled to look only to general contractor for further employment); Pavalonis v. Comm., Unemployment Compensation Board of Review, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981) (holding that claimant was self-employed when claimant supplied all of his tools and materials, did not receive any on-the job training, did not receive a fixed hourly wage and had no taxes deducted from the sums received from employers).To determine whether a business is one which is customarily engaged in as an independent trade or business, the Pennsylvania Courts consider two factors: (1) whether the claimant is capable of performing the activities in question for anyone who wish to avail themselves of the services; and (2) whether the nature of the business compel the individual to look only to a single employer for the continuation of such services. See, e.g., Venango Newspapers, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly, 528 A.2d 294 (Pa. Cmwlth. 1987); Pavalonis, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981).The two above-mentioned factors essentially revolve around a worker’s loyalty to the individual/entity providing him with the work. Is the worker permitted to do the same work for two different (even competing) individuals/entities simultaneously? Does the worker recieve all of his work from a single individual/entity? May/must the worker seek work from more than one source? Perhaps most importantly, who decides where the worker can perform his services? If a worker is constrained to work for a single individual/entity and/or cannot select himself where he will perform his services, then the Court will weigh these factors in favor of the worker being in an employment relationship rather than an independent contracting relationship.Significantly, the amount of money a worker receives is not a determinative factor in these analyses, as even a small sum earned does not automatically remove the designation of “independent contractor”.Ultimately, all of the above factors can essentially be reduced to a single word: freedom. Does the worker have the freedom to set his own schedule? The freedom to establish his own pay rate? The freedom to work for competing businesses simultaneously? As a corollary, does the worker have to bear the responsibilities associated with this freedom, such as deducting his own taxes, using his own tools, and bearing the risk and burden of financial loss in the business? In the end, the more freedom a worker has the more likely the Court will find that he is an independent contractor (self-employed); the less freedom a worker has the more likely the Court will rule that the worker is an employee.
On July 20, 1990 President Bush signed into law the American with Disabilities Act (ADA) as a vital section of legislation. This new law requires changes in both business and public services. Some of these changes are material and cost money; others involve adopting new outlooks toward people with disabilities.Three major issues contribute to a fabulous opportunity for people with disabilities to become eternally deep-rooted in the work force:First, the likely possibility that the lessening labor pool of employment-ready personnel may create worker deficiencies during this decade. This will cause employers to efficiently recruit and retain qualified employees. Since Americans with disabilities correspond to the largest single chunk of potential employees, shrewd employers will court this underemployed community.Second, a new surge of young Americans educated under the Handicapped Children Act of 1975 is graduating. This new generation will have improved educations and high potential for themselves after graduating from high school and college. Thus, they will be more malleable to competitive jobs than preceding generations of the disabled.Third, many graduating students who do not have disabilities have gone to school with disabled classmates. Therefore, with the publicity, much of the discrimination in the work force will naturally dissolve.The 1990′s offers less job safety for many, but expands and supplements job possibilities for the disabled. You may be new to the work force or in the middle of a career modification. In either case this decade will afford you a new job market as economic, political, and demographic demands close down old opportunities and open up new ones.When to unveil your disability The decision to disclose your disability and when to do so may be the single most significant consideration in your job search. This is a personal decision that has to be made for each job lead you follow and will be based on the character of your disability and your understanding of the potential employer.When reviewing this issue, ask yourself this question: If I reveal my disability, will I be hired? If the answer is no, then don’t do it. If, however, you feel the employer will hire you and make a just and reasonable accommodation, then you may wish to think how and when to inform the employer of your disability.Even though the law states you do not have to divulge your disability to a potential employer unless it relates to the conclusion of necessary job functions, you may want to be open on this subject. If you are initially frank, you may set the stage for enhanced respect by your employer. This exposé may be viewed as a sign of character, force, and confidence. How this fragile communication is made can be vital to your obtaining the job.Options:At Referral If you are one of the fortunate job seekers to get a foot in the employment door through a recommendation, you don’t have to worry about disclosing your disability. The employer probably knows about your exact limitation. It is likely the individual who made the referral has bridged that gap before your interview. This is ideal because during the interview both you and the employer will likely be more at ease. But most people with disabilities do not have this benefit. The imposing question of when and how to tell employers can be very distressing. In a fair-minded and reasonable world, you would be able to divulge your disability openly in your resume, cover letter and throughout the interview. However, we all know there is discrimination in the job market. Employers have biases and prejudices they might not even be conscious of. These may be carried into the job selection process.On Your Resume Often your disability is reflected in your employment history, schooling, and life understanding. Rather than trying to hide your disability, phrase it with positive words. Highlight your adaptability, flexibility, and aptitude in the light of your disability. Use words that showcase your abilities. Keep in mind that you may lose a few job opportunities or offers if you run into the predictable employers who are biased. But those employers are unlikely to be impartial after you are hired anyway. If you decide to disclose your disability in your resume, do not place it in the opening paragraph. Intertwine the information into your resume in a delicate manner.In Your Cover Letter Sometimes it is to your advantage to talk about your disability openly in a cover correspondence. For example, some employers specifically recruit the disabled to meet affirmative action goals or because they have a state or federal contract that requires employing disabled. Once again, as in the resume, do not create the cover letter with details about your disability. Follow the standard format for cover letters (see Cover Letters that Sell) and at the end of the second paragraph, describe your strengths and your limitations. Then continue describing how you will carry out the essential functions of the job.On the Application Form Standard employment applications may be necessary. Some organizations require all job applicants to complete a standardized document. Most of the forms have a segment for disability disclosure but this is not obligatory. You do not have to disclose your disability. You have the option but are not required by law to talk about any aspect of your limitation. The major disadvantage of disclosing at this point in the progression is that you may not have room on the form to explain accommodations or how you triumph over your limitations. This could be a difficulty. Large corporations often have a standardized discovery form that can be completed with the general submission. This is also elective for you. Think through the advantages of unveiling at this time and what you know about the particular corporation. Some corporations or employers are very helpful of disabled employees and this would be an suitable time to divulge.During the Interview Shock is a frequent reaction if a noticeably disabled person walks into an interview meeting and hasn’t adequately prepared the potential employer. This shock factor can lead to distrust and nervousness on the part of the interviewer. If your disability is highly evident (for example, being wheelchair bound, blind, walking with a cane), you may wish to prepare the employer in advance. A intelligent time to inform the interview of a visible disability could be the time when the interviewer personally requests to set-up an appointment. Do not disclose to a secretary or office assistant and expect the message is diplomatically relayed.If, however, your disability is not obviously visible (for example, a learning disability or wearing a hearing aid), you do not have to prepare the interviewer.After You’ve Been Offered the Job Many people favor to disclose after they have been offered the job on their talents, skills, and educational credentials. This may be temporarily distressful to the prospective employer but by that time you are hired and prepared to begin work. You have passed the opposition. If your disclosure changes the hiring decision and the employer withdraws the offer, you are eligible to take legal action. The ADA does not allow this kind of prejudice. The only drawback to waiting is the employer may be discontented about not knowing ahead of time and trust may be hampered.After Beginning the Job This strategy lets you excel on the job before having to disclose a limitation. If your impairment or restriction does not influence the initial work, this may be a solid choice. This option gives you time to make friends with co-workers, staff, and supervisors to reinforce your employment arrangement.Never If you believe your disability will not effect the fundamental functions of your job, you may not want to tell your supervisor or boss. Smart job applicants know telling the employer can have tremendous effect on the success of the job pursuit. Keep in mind this is not the time to instruct an employer. You can do that once you have worked on the job for an extent of time; or you may with never to do so. It is your choice.Final Issues Timing is vital. If you catch the employer off-guard and alarm him/her your chances of employment may be lessened. This possibility could be diminished if you ask yourself quite a few questions to prepare yourself and your prospective employer:Am I at ease and certain that I can do the job tasks with my disability?Can I practice my answers to the meeting questions?If I disclose my disability at this time and in this way, will I get hired?Let’s look at these in more detail. Are you comfortable and confident that you can do the job tasks with your disability? If you have the skills, schooling, or background that the job requires, you may feel convinced about your ability to do the job. But, are you happy explaining the details of your disability? Try role playing the situation. Have a trusted pal or family member make believe to be an interviewer with a listing of questions. Then make clear to the interviewer your particular disability, and how the disability will effect your occupation. Then list the benefits of hiring you. If you are uneasy, try it again. With several rehearsals, your comfort level will go up.get instant access to valuable resources if you are currently looking for employment