Talk:At-will employment/Archives/2016

At-will works in both directions

Coolcaeser, please adhere to edit and revert guidelines viz. WP:ROWN. My edit was carefully made, was based on not a little knowledge of this area, was absolutely not vandalism, and was intended to introduce not bias but balance (which I felt in good faith needed some attention). For sure there is scope for disagreement on these matters, but the place to do that disagreeing is here on the Talk page, not unilaterally by reverting a good faith edit.

It is a matter of simple fact that "at-will-ness" applies equally to both employer and employee. As such, the lead was (and is again since your revert) mis-leading (pun intended) since its phrasing is such as to stress the freedom from restriction in terms *only* of the employer. The subsequent mention that some people assert the concept's bidirectionality does not serve to undo that WP:WEIGHT problem since not only is that mention made merely as a caveat to the initial unbalanced assertion, it is done so as a caveat offered by "proponents".

Also, note that the change from "contractual" was done to reflect the fact that in some states at least (Texas for sure, as noted in the smaller of my two edits which your revert also blew away) employment is regularly *not* offered under contract precisely so as to avoid inadvertently deactivating the default at-will status. Instead, the current norm is to create the employment relationship with an employee "agreement" and not a "contract". Since in the context of the sentence in question "employment relationships" can be taken as a superset of "contractual relationships" -- I.e. all of the latter are the former, but not all the former are the latter -- "employment" covers all situations whereas "contractual" fails to cover some.

Now as I say, reasonable minds may differ on these issues, but they should differ here, on Talk, first, and not simply discard someone's well-intentioned contribution, backed by design with practical employment legislation in at least four US states for over a decade.

In that light I am undoing your revert which for the reasons just given I believe was not appropriate or useful. Now, if you still object to the content, by all means explain here and give some time for mannerly discussion. If the overall goal here is to make Wikipedia a good encyclopedia, surely some informed and good-natured discussion is something we'll all welcome? 2605:6000:F340:9700:580F:41A9:BEE1:F2A9 (talk) 02:13, 13 May 2016 (UTC)

Dear new User at "2605:6000:F340:9700:580F:41A9:BEE1:F2A9|2605:6000:F340:9700:580F:41A9:BEE1:F2A9": Some of what you wrote in this talk page section is correct; some of it is incorrect. More to the point, you have to go with what the SOURCE material says, not what you know (or believe you know) to be "correct."

It is technically correct to say that an employment relationship can exist without a contract. However, employment relationships without a contract are very rare -- even in Texas. If you as an employee go to work for an employer under an agreement whereby you will work for them in return for compensation, you have an employment contract. The contract may be an unwritten one, but it is still a contract under the law. Almost any employment agreement is also an employment contract unless, for example, the employee is agreeing to work for absolutely no compensation of any kind whatsoever (pretty rare).

You are correct that the legal concept of employment at will means that in general both the employer AND employee can terminate the contract at any time, for good cause, for no cause, or even for "bad" cause. That point could be made more clear in the article. But the proper way to do that is to find sources that SAY that -- not to insert your own "knowledge" or belief about the subject. Perhaps the sources that are already listed in the article DO say that; I don't know.

Coolcaesar can speak for himself, but I suspect that Coolcaesar was reacting to what appears to be your insertion of your own unsourced beliefs. Famspear (talk) 20:47, 13 May 2016 (UTC)

My understanding was that avoiding WP:OR meant that the material must be verifiABLE, but not necessarily that it be veriFIED. My view was that the notion of bi-directional at-will was so much more verifiable than one weighted in one direction as the original article suggested, that there was no need to add specific sources. After all, if someone wrote in an article that dogs have at least two legs, I'm not sure I'd have to quote RS to be able to say that they usually have two but also two more. But, fair enough, I've added them. Now, had you not reverted so fast -- isn't the general rule that the parties should discuss *first*, and then revert/modify/whatever -- I would have simply added them. However, both because it made sense in light of the citations I was providing, but also so as to demonstrate good faith on my part, I did not re-revert again. Instead, I started from the article as it was, and re-wrote in light of the new references (an exercise that has now taken at least five hours, especially since I wanted to make sure the references were as precise and checkable as I could). And a few points are worth drawing out from that:

Several of the sources I've provided, along with several others that agreed but I didn't feel added much more (all supporting my own experience and the advice I've received from my own advisors --labor experts in the largest law firm in the world), indicate that it is simply not the case that "employment relationships without a contract are very rare". In fact, the opposite appears to be the case (see, for example, the "Workplace Fairness" reference, currently #7). And working as an employee in return for money is absolutely not sufficient, in most states, to constitute an implied contract (whereas the distribution of an employee handbook that places restrictions on how an employee may be fired may well create a contract.) The point being -- as stated by those sources -- at-will is what you have when you do *not* have a contract (contracts may, but needn't, modify/nullify the at-willness), and that it is not inevitable that an implied contract will arise just by virtue of working under an "agreement".

Anyway, have a look at the new version, and see what you think. 2605:6000:F340:9700:B9FE:3DAD:EF1D:F3DD (talk) 05:46, 14 May 2016 (UTC)

You're confused about terminology. In law, the term "contract" has more than one meaning. Yes, virtually all employment is in the form of a contract.

A contract is a legally binding agreement, whether written or oral, whether express or implied. Specifically, a contract is a promise or a set of promises for which the law gives a remedy, or the law recognizes as a duty.

If you agree to go to work for someone and the agreement is that the employer pays you for your work, you and the employer HAVE A CONTRACT. If you do the work and the employer refuses to pay you what you and the employer agreed upon, you can recover in a court of law under CONTRACT LAW.

An agreement, express or implied, to work for someone else as an employee -- even in an at will status -- is a contract. It is a legally binding agreement. If it were not, then the employer could legally refuse to pay you what you and the employer agreed upon.

Generally, when a source seems to say that there is no "implied contract" in such and such an employment arrangement, the source using the term "contract" in an imprecise way.

Even lawyers and judges use the term "contract" in more than one way. For example, in a written contract situation, we often refer to the physical document as "the contract" -- as in: "Let's read the contract."

You're mis-interpreting the material you're reading. Famspear (talk) 13:08, 14 May 2016 (UTC)

And, to be clear: No, "at will" employment is NOT the situation where "you do not have a contract." At will employment is almost always contractual. And, yes, it is almost inevitable that an implied contract will arise just by virtue of working under an agreement. Famspear (talk) 13:14, 14 May 2016 (UTC)

Just like life in general, law is full of technical terms that have more than one technical meaning -- one meaning perhaps a broad meaning and another meaning perhaps a more narrow one.

Consider the phrase coverage of a pre-existing condition as often used in connection with health insurance. You will often hear someone say that such and such a policy covers a pre-existing condition. Of course, that is a figure of speech; it's not literally true in a narrow sense. Health insurance policies do not cover conditions, whether pre-existing or not. What the policies really cover are the COSTS you incur as a RESULT of the condition. No insurance company is going to pay you or your health care provider merely because you're sick. They're paying because you incurred COSTS as RESULT of being sick.

This distinction was actually important a few weeks ago in a disagreement (albeit not in court) about the meaning of the term "pre-existing condition," where one of the parties to the discussion actually became confused because he did not recognize that the phrase "coverage of a pre-existing condition" was a just figure of speech that was not to be taken literally.

It's not that one particular use of a certain term is necessarily "incorrect." It's just that we need to recognize that the terms have more than one meaning. In law in particular, the failure to recognize the multiple meanings of words can lead to commission of the fallacy of what some legal scholars call false whole-word equivocation. Famspear (talk) 13:43, 14 May 2016 (UTC)

(Using an account now :-) ) Perhaps we can agree to disagree on the contract thing, because as you yourself pointed out, what matters is not what I think is true, but rather what reliable sources say. (Although I will note that in terms of contracts and at-will status, I'm really just repeating what I was told in the context of my HR job by my ex-husband who is a Texas labor attorney, and also by DLA Piper labor specialists when I was working in California). So by all means, to the extent that the sources are not supporting the content, please fix either or both. I hope I have helped develop the article's quality at least a little, and I do think the lede now has a more neutral POV than it did before. But that's just my opinion, and even if you agree with it, the operative phrase was "at least a little bit" so there's certainly scope for further work. So have at it! :-) TinaFromTexas (talk) 03:49, 15 May 2016 (UTC)

Just noticed this. I don't have the time to get into this issue thoroughly right now, but I concur with Famspear's cogent analysis of the issue. --Coolcaesar (talk) 16:14, 15 May 2016 (UTC)

I have reverted back to the last good version by Famspear. It is clear that TinaFromTexas does not understand how contract law works. --Coolcaesar (talk) 13:30, 24 May 2016 (UTC)

Please provide a more substantial argument for a reverting than simply "it is clear that ... etc". And note that as Famspear says, it is not about what *I* understand about this matter, but rather what the sources support. Following Famspear's earlier comments, what I wrote was extensively sourced. That does not make it correct, but it does mean some details are required to justify such a sweeping and unilateral rejection of what amounts to many hours of careful work done in good faith to help improve this article. If you have problems with it, please explain them and allow for discussion *before* reverting. TinaFromTexas (talk) 04:53, 27 May 2016 (UTC)

Nearly every sentence in your version was infested with numerous errors of every kind. Here are my comments on the first few sentences of your version.

"At-will employment is a legal presumption in all U.S. states (other than Montana), whereby either an employer or an employee may, with no adverse legal consequences, terminate the employment relationship for any legal or no reason."

• The employment relationship is inherently contractual in nature. Even if there is no written or express contract, there is an implied-in-fact contract.
• The employment relationship by definition is a legal concept, like crimes or torts. Saying "legal" three times in the sentence is superfluous.

"The at-will doctrine is not itself a form or component of contract, but rather is the default state deemed to exist prior to any contractual override. However, the presumption can be overridden by an employment contract, either explicit or, in several states, implicit."

• Again, the employment relationship is inherently contractual in nature, so this is just wrong, and frankly, sounds nuts.
• "Default state" is confusing because the word "state" already has a specific legal meaning.
• "Contractual override" is incorrect because this is already a contractual relationship.
• The presumption can be overridden by an express employment contract.

"For examples, in workplaces with a trade union recognized for purposes of collective bargaining, and in many public sector jobs, a contract is used to override at-will status such the employer must have a "just cause" to dismiss an employee."

• It's always "for example," never "for examples."
• Pairing "workplaces" with "public sector jobs" sounds really weird because a "workplace" is a very different thing than a "job." It should have been "in many public sector workplaces."
• "Such the" should be "such that the," and even then, it sounds awkward. "So that the" is smoother.

"Other mechanisms by which at-will status may be modified or completely overridden include the Public Policy and Covenant of Good Faith exceptions."

• "Methods" is a more appropriate word choice than "mechanisms."
• The last two concepts in this sentence should not be capitalized.
• It is always the "implied covenant of good faith and fair dealing."
• The better phrasing would be "other exceptions to the at-will presumption include..."

This is just a very rough first pass to spot obvious errors of the kind that most native English speakers are able to avoid by the time they graduate from high school. I'm sure I could catch many, many more if I bothered to look for them. I have neither the time, energy, nor inclination to tutor a stranger in basic English composition skills. You really need to take a remedial course. (There is nothing like the exquisite experience of having one's first college English composition paper returned by a Harvard-trained graduate student instructor with red marks all over it to make one really understand the concept of unknown unknowns.)

Also, I don't have the time right now to get into the issue of the poor quality of your sources or how many of them don't qualify under Wikipedia's requirements for reliable sources. I will have to deal with that later. --Coolcaesar (talk) 09:45, 1 June 2016 (UTC)

I just reverted User:RJaguar3's revert of User:Famspear's revert because RJaguar3 failed to make any attempt to even grapple with the obvious issues I raised above, which are only the tip of the iceberg. The fact that RJaguar3 didn't try proves my point. No one has the time, energy, or inclination to spend 14 hours of their life cleaning up prose which averages about three to four major errors (accuracy, grammar, logic, syntax) per sentence. The prior (now again current) version is superior because it is already presented in reasonably coherent English and is neutral and accurate. --Coolcaesar (talk) 07:47, 19 September 2016 (UTC)