A recent national journalistic piece counselled employers about firing employees. Many employers need the advice. Employers can be ruthless when they decide they want to remove an employee – regardless of the employee’s tenure or devotion to the firm.
The journalist’s coaching was not directed towards the subject of fairness towards the employees. Rather, the theme was concerned protection employers from former employee lawsuits.
The first employer protection issue, naturally, focused on the “at-will” employment doctrine. People believe that “at-will” employment is the standard across the nation. Most employees probably are “at-will.” It means they may be terminated for any reason or terminated or no reason.
But six important exceptions to the “at-will” employment rule protect employees. They are:
1) A written employment contract containing, among other items, the employee’s employment dates (beginning and ending). Where prospective employers are offered an employment contract, it is wise to arrange for an attorney to review and advise the employee concerning the employee’s rights – before accepting the position.
2) A state law prohibiting employers from discriminating against employees who are members of a protected group (gender, disability, sexual orientation, etc.). The websites for the state department of equal opportunity or the attorney general’s office will usually provide adequate information about state laws. An attorney’s advice should also be beneficial – assuming the attorney specializes in employment law.
3) Laws covering employee wages and injuries and prohibiting harassment, retaliation and hostile working environment. Again, an attorney’s advice will assist in evaluatin in employee’s situation.
4) An employee handbook that prescribes “just cause” as a necessary predicate to dismissal. The handbook may also provide for progressive discipline or other forms of discipline prior to a dismissal. It is vital for employees to acquire, read and understand the employer’s handbook – preferable before accepting a job. Many employee handbooks provide for progressive discipline. The practice may include warnings, probation or suspension before dismissal. If so, it is vital not to ignore or relinquish these rights.
5) A documented and/or provable employer verbal promise to comply with items 2 & 3, above.
6) State, municipal and school employees are usually protected by either a statute or a collective bargaining agreement. As with the other employee protections, it is wise to understand the laws and agreements that govern an employee’s position. Again, the websites for the state department of equal opportunity or the attorney general’s office will usually provide adequate information about state laws. An attorney’s advice should also be beneficial, assuming the attorney specializes in employment law.
The journalist wisely advises employers to “document everything” en route to firing an employee. Employees should be alert to employer documentation practices. If employee perceives that an employer is taking extra care to document the employee’s actions and performance, the employee should review his/her personnel file for adverse notations. If they are present, the employee should inquire of the supervisor or human resources official about the notations and take action to protest and/or correct the conduct or performance issues.
In a subsequent blog piece we will discuss how to protest an employee’s threatened position and build a case to save the employment.