Employment-At-Will & Discharge

Employment-at-Will

· Doctrine

· Employment is at will of employer or employee

· Employment may be terminated

· at any time

· for any or no reason

· unless a contract in place specifying terms & duration of employment

An at will prerogative without limits could be suffered only in an anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together.

−Sides v. Duke Hospital

Employment-at-Will – II

· Historically

· termination of for any reason widely accepted.

· Growing trend toward a restricted application of the at-will employment rule whereby right of an employer to discharge at-will employee without cause

· limited by either public policy considerations

· or implied covenant of good faith & fair dealing.

Employment-at-Will – III

· Fairly balancing rights of employee & needs of organization complex objective

· Chapter provides direction in balancing act rights

Employment-at-Will – IV

· Embroiled in combination of legislative enactments & judicial decisions.

· Some states more employer oriented.

· e.g., New York

· Other states in harmony with constitutional rights of employee.

· e.g., California

A Civilized State

“obvious and indisputable fact that in a civilized state where reciprocal legal rights & duties abound, the words "at will" can never mean "without limit or qualification," as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily & inherently limited by the rights of others & the interests of the public. An at will prerogative without limits could be suffered only in an anarchy . . . .

− Sides v. Duke Hosp.

Public Policy Issues – I

· Public policy originates with legislative enactments.

· Public policy exceptions to the employment-at-will doctrine

· employees may not be terminated for reasons contrary to public policy (see next two slides)

Public Policy Issues – II

· Disability

· Age

· Race

· Color

· Religion

· Sex

· National origin

· Pregnancy

Public Policy Issues – III

· Union Membership

· Filing of safety violation complaints

· e.g., OSHA

· Whistle-blowing

· Whistle-Blower Suit Untimely

· Text Case: Paving Her Way to Heaven

· Reporting patient abuse

· Elder abuse

· Child abuse

Public Policy Issues – VI

“It can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. It is to be found in the states constitution and statutes and, when they are silent, in its judicial decisions.”

−Palmateer v. International Harvester Co.

Employment Issues

· Retaliatory Discharge

· Cannot be used as a means of oppression

· employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee.

· Fairness the Ultimate Test

· Defending a Claim of Unfair Discharge

Termination – I

· Employment Disclaimers

· denial of a right that is imputed to a person or that is alleged to belong to him or her

· Termination for Cause

· Termination and Financial Necessity

· Hostile Attitude

· Poor Work Performance

· Alcoholism

· Insubordinate Behavior

Defending Wrongful Termination Case – I

· Meeting minutes

· Written reports, typed or handwritten

· Personnel file

· Tapes

· Letters, cards, and handwritten notes

· Personnel handbook

· Personnel and departmental policies and procedures books

· Oral testimony from fellow employees and supervisors

Constructive Discharge

· Work environment where an employee is pushed to quit a job

· employer has made working conditions intolerable

· Employee must prove

· working conditions were constructively made intolerable

· continuous pattern of employer misconduct

· any reasonable person would or did resign

Termination Questions to Ask – I

· Was there a violation of public policy?

· Was discharge being retaliatory in nature?

· Was there a refusal to perform an illegal act?

· Was the employee questioning a management practice?

· Was termination arbitrary and capricious decision?

Termination Questions to Ask – II

· Was there a violation of any contract, oral or written?

· consistent with the reasons for discharge?

· Was there discrimination against the employee for filing a lawsuit?

· Was there interference with an employee’s rights as secured by the laws or Constitution of the United States (e.g., right to freedom of speech)?

Termination Questions to Ask – III

· Was termination fixed?

· don’t confuse me with the facts

· “I’ve made up my mind!”

· foregone conclusion

· before any appeal actions can be taken

Effective Hiring Practices – I

· Clear Policies & Procedures

· hiring

· disciplining

· terminating

· P & Ps & Handbooks

· reserve right to add, delete, revise

· Application

· Background checks

Effective Hiring Practices – II

· Familiarity with state laws

· Interviews

· human resources

· Supervisor

· References

· follow up with a telephone reference

· Employee handbook & job description

· document employee read, & understood handbook & job description

Effective Hiring Practices – III

· Constructive performance evaluations

· Progressive disciplinary action policy

· In-service education programs

· interviewing techniques

· performance evaluations

· disciplinary actions

· Contract language

CLEAR COMMUNICATIONS

· Communicate clearly to prospective employees

· employment is at will

· employment can be terminated at any time

· Handbooks & personnel manuals

· fair & unambiguous standards

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