Should employment at-will be part of a supervisor’s typical conversation with an employee?

Answer:  No.

As a general rule directors, managers and supervisors should not discuss employees’ at-will status with employees they supervise.  I do not object to a conversation about at-will, but oftentimes, I object to the purpose for having the conversation.  On the one hand, if an employee seeks a better understanding of at-will, supervisors should discuss the policy and its application.  No objection.  On the other hand, in my experience, conversations about at-will are oftentimes initiated by supervisors who use the standard to bully employees.  Said another way, I object to the use of at-will as a blunt tool to force employees to perform as a substitute for effective management techniques.  Let me explain.

Employment at-will is not a management technique.  Employment at-will only defines the low legal standard for an employee or employer to terminate the employment relationship.  Some refer to the at-will standard as a “legal shield” because at-will is a low standard for employers to justify a termination.  For employers, as long as the reason for the termination does not violate the law, the employer may terminate the employee for any reason.  Here is a typical at-will policy:

Employment with the ABC Tribe is voluntary and the employee is free to resign at any time with, or   without  cause.  Similarly, the Tribe may terminate the employment relationship at will at any time, with or without notice or cause.  This policy is known as employment at will.

Under this policy, the employee may terminate the employment relationship for any reason (even if it is unlawful) but the employer must not violate the law and attempt to hide behind the at-will standard.  What laws must employers not violate when using at-will?

For tribal employers the answer to this question is complicated by a variety of factors which define whether the laws of the federal and state governments apply.  As a general rule, federal and state civil rights laws do not apply to tribal employers on tribal lands and other employment laws which govern wages, hours, leave, collective bargaining and safety may or may not apply.  Therefore, as an employer using the at-will standard, tribal employers should address this applicability question (Do federal and state laws apply?) while at the same time follow the tribe’s legal and/or policy standards in the termination process.

Said another way, if the tribe states that it does not use gender in making employment decisions, the directors, managers and supervisors making the decisions for the tribe cannot use gender as a factor.  In addition to complying with the tribe’s legal standard, it is morally obnoxious to discriminate against employees, or prospective employees, in making employment related decisions.

Now that we have discussed the general idea of at-will employment, let’s return to the first question posed:  Should employment at-will be part of a supervisor’s typical conversation with an employee?

Instead of a legal standard which defines under what circumstances an employee may be terminated, some directors, managers and supervisors misinterpret the at-will policy to mean:

“It is really easy to fire people policy”

Instead of seeing the at-will policy as a legal shield which may protect the tribe in a legal proceeding challenging the termination, those supervisors viewing at-will as the “It is really easy to fire people policy” stop managing challenging employees and instead use the at-will policy as leverage.  Those supervisors hold the at-will policy over the heads of employees by intimidating them with the low legal standard.  The supervisors bully and threaten employees into complying with the supervisor’s reasonable, and unreasonable, demands.  For this reason, I am against most conversations between supervisors and employees about employment at-will since those conversations likely have intimidation as a motive.

Instead supervisors should be focused on managing employees through department training, performance evaluations, performance contracts and constant feedback both positive and negative where appropriate.  If managing employees is the goal, the at-will conversation between supervisor and employee is not on the agenda.

Recommendation:  Talk to directors, managers and supervisors about what at-will is and what it is not.  At-will is a legal standard for employees and employers to terminate the employment relationship.  At-will is not a tool of intimidation which is used as a substitute for managing employees.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.