Note to HR professionals – please forgive the title of this entry – you already know that there isn’t really a “versus” between the two topics listed.  For the rest of you . . . .

I was traveling for the holidays.  Typically when people  find out what I do, they will ask about firing people.  Once again, someone made the brilliant comment: “Oh, well it must be a little easier to fire people in Tennessee because it is a right-to-work state.”

Let’s set the record straight . . . “right-to-work” has nothing to do with the ability to fire people.  Right-to-work is a concept out of traditional labor law (with unions) that provides that even with the agreement of the employer and the union, no individual employee can be forced to join a union after a period of time.

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Labor Law 101:

Closed Shop: You must be a member of the Union before you can start work. (Not legal in the U.S.)

Union/Agency Shop: In order to maintain employment, you must join the Union or pay Agency fees after a certain period of time. (Legal in some states.)

Open Shop: You can join or not join at your leisure.

Generally, similarly situated employees end up as part of the same “bargaining unit.”  The Union is responsible for fairly representing any members of the bargaining unit whether they pay dues or not.  This is the reason that many union-loyalists oppose right-to-work legislation – it means that they have to represent some people for free.

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Employment-at-will is the concept that an employee can be fired arbitrarily for any reason at any time.  Also, employment-at-will means that you can fire someone for no reason – just “because you feel like it.”

In the real world, though, it is advisable to have a good reason to terminate someone’s employment.  There are good business reasons (training time, turnover costs, etc.) and good moral reasons, but the strongest reason one is of legal protection.  To fire someone for certain reasons is actionable (marital status, race, religion, disability, etc.)  The problem with firing someone for no reason is that it would invite lawsuits – people have a hard enough time dealing with terminations, much more so if the reason is just “because.”

The greater difficulty is also that if someone alleges they have been terminated for an improper reason (e.g. discrimination), think about how you could convince a jury otherwise.  “I know that she complained about her bosses inappropriate comment, but we didn’t fire her for retaliation – our reason has just seven letters  . . . . B-E-C-A-U-S-E.”  The jury may decide to award your former employee just seven figures.