No Job Is Secure To
Workers
Geoffrey Glaser/January 1996
|
The truth
may surprise you! |
| No law gives you an automatic right to
keep your job. In fact, it is just the opposite. Most of the legal principles and
practices of the workplace are indisputably on the side of the employer who fires you. |
| Accordingly, you can be fired for many
reasons, most of which you certainly understand, including poor performance, poor
attendance, violating laws or company rules, drugs and refusing to obey orders. |
| And, as is all too common today, you can
be laid off for many reasons, none of which have anything to do with you, such as economic
or business conditions, or lack of work. |
| But, you also can be terminated for no
reason at all! |
| The prevailing doctrine defining the
employer/employee relationship is called "Employment-At-Will." |
| In simple language, it means continued
employment is at the will of either party. The employee can quit his job at anytime for
any reason and the employer cannot stop it. There is no indentured servitude. Conversely,
the employer can fire an employee at any time for any good reason, bad reason or no reason
at all. This legal precept is based on ancient English common-law, the foundation of our
legal system. |
| It started with the property rights of
the business owner to run his business any way he wanted. In the United States, this
concept was made very clear by the Supreme Court in 1894 when it ruled an employer does
not have to have a reason to fire an employee. |
| In modern days, this absolute right has
been eroded. |
| Congressional legislation has limited
employers' rights to fire at-will, primarily through discrimination laws and protective
labor laws. Also, collective bargaining agreements have historically required employers to
have "good cause" to fire an employee. These agreements usually have appeal
procedures and also provisions for a third party to review the facts and render a final
and binding decision. |
| In more recent years, the at-will
standard has been further modified by court decisions recognizing a relatively new cause
of action, called "wrongful termination." |
| This has evolved to protect workers
from unjust acts of employers that violate a public policy or one of the basic legal
tenants, such as contract law. Under the guise of public policy, courts have created
exceptions to Employment-At-Will for employees in many situations, including whistle
blowing (which is where an employee reports the employer's violation of a law), when an
employee files a claim against the company under a legal provision, such as Workers'
Compensation, or when an employee refuses to obey an order to commit an unlawful act. |
| Also, the courts have carved out an
exception based on contract law. The employer may have created an employment contract with
the employee, either expressed or implied, that limits the ability to terminate the
person. This is clear if the employer stated in writing the specific term of employment,
i.e. five years. |
| When it is not that clear, it can be
implied from statements made orally in the interview, written in an offer letter, or
possibly published in the Employee Handbook The courts will look for statements such as
"you will have a job here for as long as you do good work," or you will be fired
only for "good and sufficient reason." |
| Due to this case law, employers today
have Employment-At-Will language on their employment applications, in their Employee
Handbooks, in benefit booklets and in many other documents. Their purpose is clear: to
make sure their employees understand, or at least to enable the employer to claim their
employees understand, the legal basis to the employment relationship at their company. |
| Based on Employment-At-Will concepts, it
is also true that employers do not have to provide you with progressive warnings before
firing. Furthermore, severance pay is also not required upon discharge. However, expressed
or implied agreements to do so create an enforceable legal right for you. |
| In conclusion, we all want and deserve
to be treated fairly. However, the definition of fair is different, depending on if you
are the firing business owner or the fired employee. |
| Basically, the employer holds most of
the rights in this regard. Thus, it becomes the employee's challenge to develop a position
that effectively eliminates the employer's rights. |
| This is not always easy. But, of course
this was not really a surprise to you, was it? |
| Geoffrey Glaser is an HR attorney
and generalist with 25 years of experience and is a Human Resource Store associate. You can
access him by calling (773)775-6636 24 hours daily. |