I was hoping that fellow blogger, Jon Hyman (of Ohio Employer’s Law Blog fame), and I would get to make another World Series bet. Unfortunately, his team (the Phillies) and mine (the Yankees) are both watching the World Series from some tropical poolside bar.
But it gives me an excuse to cite to a recent post by Jon in which he attempts to outline what an employer’s Bill of Rights would look like.
Among the rights he describes:
- The Right to Hire on Qualifications and Fire on Performance: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire. We want to be able to fire without the fear of an expensive lawsuit when you fail to perform.
- The Right to Criticize: Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
- The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
On first blush, it certainly is provocative. Why, after all, do companies need to have rights? (Something that the Occupy Wall Street group would certainly take issue with.)
But the point I think Jon is making is that despite all the rights that have been granted to employees over the years (FMLA, ADA, WARN, etc), employers still have things that they can do that should avoid judicial intervention.
I use the word “should” in the loosest sense because even a situation as simple as an employee quitting his or her job can turn into a legal proceeding over the eligibility for unemployment compensation or, worse yet, a hostile work environment “constructive discharge”. The “rights” aren’t set in stone and unfortunately, that makes it difficult for employers to get some certainty in their employment decisions.
So, dear readers, what is Jon’s list missing? Or is the whole notion of an employer’s bill of rights too far-fetched?