We, the People

. . and justice for all

How to Protect yourself

Whether or not you decide to seek legal assistance to determine whether you should  proceed with a wrongful termination claim, it’s a good idea to accumulate  documentation of the  events surrounding your discharge  so that you will be have an accurate picture of what happened.  This material can be helpful if/when you apply for unemployment insurance, as well as when you apply for a new job. If your previous employer decides to challenge your unemployment claim, it will be important to show that the employer did not have a good reason to fire you. 

In some states your employer is required by law to give you access to most parts of your personnel file (excluding some strictly confidential records.) When you request it, take a close look at what’s inside and ask your HR representative to make copies of your employee reports and reviews, whatever you think is important. Also, make a list of the documents it contains, in case your employer tries to deny the existence of a report—or adds a false report—in the future.  

In addition, it’s important to keep your own documentation of the termination process. Keep accurate notes of dates, locations, and people involved in significant events such as commendations and reprimands, salary increases or decreases, regular performance reviews, or even casual comments from your supervisor in reference to your work. These notes should also include any witnesses who may have been present, including any members of the management. Make sure you keep these notes in a safe place. Also, it’s a good idea to back up your own notes with materials produced by your employer (e.g. an employee handbook.)

How to proctect yourself resource:

“Just Cause” is fair for both employer and employee. If a person does not do the job, or fraudulently bilks the corporation with illegal operations, then they should be terminated immediately as the employer is completely justified. However, if same employee’s hairstyle does not suit the manager and the employee, proven productive, the repugnant At-Will covers the manager, and the corporation will back them up. The manager usually invents causes and documents anything, whether out of context or not.

I have seen the damage and exploitative abuses of people left in the wake of At-Will and there is no doubt that at least half the people who have lost their jobs in the present economy, did so to convenience the corporation. The older worker’s retirement funds, the disabled employee who might inconvenience the corporation eventually, the young pregnant or post-pregnant woman may become a liability. . .there are many reasons for corporate greed and avariciousness.

The so_called "At-Will effects everyone who signs an at-will agreement, never thinking that it would affect them. Actually, anyone who desires employment will, without thinking it through, sign the agreement because they would probably not make it through the probationary period.

1.; Background— Just Cause:

Definition of Just Cause Legal:

Employment law: misconduct of an employee, or some other event relevant to the employee, which justifies the immediate termination of the employment contract. "If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer's business, or if he has been guilty of willful disobedience to the employer's orders in a matter of substance, the law recognizes the employer's right summarily to dismiss the delinquent employee."

Just cause, in the employment context, refers to the employer's right to discipline or terminate employees for misconduct or negligence. In many states employers must at least show just cause for terminating you. For example, if an employer punished an employee without just cause, a Court can order the employer to compensate the worker. Just cause is legal jargon for a legitimate business reason, such as wrongdoing on the employee's part. Just cause is often a matter of interpretation by the courts or arbitrators.
Some of the factors that may be examined to determine whether just cause existed for a disciplinary action or firing include:

1.2. A group of law students at Harvard wrote in 1980:

Regardless of its form, the prospect for statutory chance is doubtful without a strong lobbying effort that unorganized employees are probably unable to mount. Strong union support is not likely either because this kind of statutory reform would take away one of the unions' principal arguments — that protection from unjust dismissal is available only under a collective bargaining agreement administered by a union-controlled grievance mechanism.

Such public law solutions need not be the exclusive remedy for At-Will employees. Courts possess the legitimate heritage of common law innovation that develops new principles to accommodate changing values, and are therefore an appropriate forum for the creation of job security rights. Because courts have considerable experience with similar employment relations problems, they possess sufficient expertise to resolve wrongful discharge disputes. Thus, courts need not await legislative initiative to effect doctrinal change in the employment At-Will area. Courts themselves created the At-Will rule; it is therefore entirely appropriate that they now take the lead in modifying it.

Note, Protecting At-Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harvard Law Review 1816, 1837-38 (1980). [Five footnotes omitted]

1.2.1 Background AT-Will

An Examination of the At-Will Employment or Just Cause Employment Doctrine The better of the two choices is Just Cause as At-Will is truly the Master Slave doctrine that Horace Wood Alludes in his critique: Master Slave Doctrine.
By George K. Pitchford, Esq.

In 1985, an attorney wrote, in a scholarly article:

The doctrine of employment-at-will emerged in the nineteenth century in the United States in a climate of unbridled, laissez-faire expansionism, social Darwinism, and rugged individualism. It is often referred to as Wood's Rule, named after Horace C. Wood, who articulated the doctrine in an 1877 treatise Master and Servant. No doubt the title of the treatise says all that need be said regarding Wood's view of employment relations and, unfortunately,
the view shared by most of his legal contemporaries.  

1.2.2. Why haven't legislatures ended at-will employment?

       The problem [of abusive dismissal of employees] does seem to be one suited to legislative inquiry and solution. As a practical matter, however, the prospects for any kind of general legislative reform in this area are dim. The obstacles which commonly hinder legislative reforms of this sort have been commented upon elsewhere.139 Suffice it to say that general statutory limitations on the employer's right of discharge are unlikely to be enacted so long as there is no strong lobby to promote them. Employees having diverse job specialties and working at varying echelons of employment simply are not equipped to from a cohesive group with enough power to influence legislators. The unlikelihood that such legislation will be enacted in the foreseeable future is enhanced by the strong interest groups to be counted on to oppose it. Nor could organized labor be expected to favor laws, which would give individual employees a means of protecting themselves with need of a union. Therefore, it appears that protection of all employees from the abusive exercise of employer power will have to originate, if it is to be established at all, in the courts.

139 See, e.g., Peck, The Role of the Courts and Legislatures in the Reform of Tort Law, 48 Minn. L. Rev. 265 (1963). Among the characteristics of the legislative process which the author points to as generally obstructing statutory reform of tort law are that legislators are indifferent, lack insight and experience, are paid inadequate wages, fail to hold satisfactory committee and public hearings, and are subject to well-organized lobbies and pressure groups.
Lawrence E. Blades, Employment At-Will v. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Columbia Law Rev. 1404, 1433-34 (1967). [Five footnotes omitted]

(Truncated article by Mr. Pitchford, an attorney at Floyd Allen & Associates, a labor and employment law firm in Detroit, Michigan. NM)

. . .One such concept that is slowly creeping into the mainstream consciousness is the At-Will Employment Doctrine. Unfortunately, unlike some of the other legal concepts that make this transition, much of what people know about the At-Will Employment Doctrine is learned secondhand from unreliable sources, or whatever limited real world experiences a person may have as an employer or employee. Although an overwhelming majority of Americans are someone’s employer or employee, the At-Will Employment Doctrine never has, and probably never will, garner the same amount of mainstream attention as other more sensationalistic and popular legal concepts and topics like freedom of speech, abortion or even who will be the next Supreme Court Justice.

This approach towards understanding the At-Will Employment Doctrine coupled with the overall reluctance of most workers to engage their employers in a serious discussion about their rights in the workplace leads to confusion and sometimes devastating consequences.

As an employment law attorney, at least once a week I have to explain to a displaced worker why, in spite of the fact they were discharged because their supervisor “had it out for them,” they have no real legal recourse because they are considered an at-will employee. Therefore, it is my sincere belief that anyone, regardless of profession, who is either an employer or an employee should at least have a basic understanding of what is the At-Will Employment Doctrine, and what rights employers and employees have under it, particularly since most states have adopted it through the courts, if not by legislation.

First, it should be noted that the At-Will Employment Doctrine is fairly unique to the American employer-employee relationship.1Most western industrialized nations do not adhere to the rule, and generally afford employees with some form of protection against arbitrary or unfair discharge.2 The legal history of the At-Will Employment Doctrine is no less surprising. According to legal scholars, the At-Will Employment Doctrine is a legal fiction unintentionally invented by Horace C. Wood.3 In his 1877 legal treatise on employment law, entitled Master and Servant, Mr. Wood erroneously cited four cases from around the country that he claimed supported the principle that an employer could discharge an employee at anytime for any reason.4 Mr. Wood’s error was overlooked, or maybe even ignored by a pro-business judiciary, and courts around the country quickly began adopting
the At-Will Employment Doctrine.

Today, whether they know it or not, all employees in the United States are divided into two categories: 1) just-cause employees; or 2) at-will employees. As implied by the name, just-cause employees can only be terminated from their employment for a good reason, and are usually entitled to some form of independent review of the employer’s decision to terminate them.5 At-will employees, on the other hand, can be terminated for any reason, or no reason at all. Quite simply, this means that in an at-will workplace there is no esoteric form of fairness or justice that can be protected or
enforced by the courts.

In states that recognize the At-Will Employment Doctrine, an employer or supervisor can terminate an employee because they do not like their style of dress, choice of music or maybe even the color of their shirt, and the employee would have no real legal recourse in most instances. Employers have even begun to threaten employees with termination for off duty legal conduct such as smoking.6 Although some of the more extreme tactics by employers have not been tested in the courts, many legal observers believe that such policies will be upheld because of the broad nature of
the At-Will Employment Doctrine.

As broad as the At-Will Employment Doctrine is, employers and employees should also understand its limits. Regardless of at-will status, there are certain reasons that an employer can almost never cite as a basis for termination. For instance, an employer could never terminate an employee because of their race, age, national origin, gender or any other trait that is protected by the state and federal laws. Also, most states that have adopted some form of the At-Will Employment Doctrine have carved out certain exceptions in an attempt to promote sound public policy, and protect workers from being exploited. Even the Federal Government has enacted a series of statutes that protect employees who report their employer’s violation of certain federal laws from retaliatory termination.7

In spite of these protections, most workers faced with the stark reality of the At-Will Employment Doctrine are uncomfortable with the arbitrary power it grants their employer over their livelihood. My advice to most at-will employees is to try and open up a dialogue with their employer, who may be willing to consider some different alternatives. It is important to note that in most states an employee’s at-will status can be modified by an employment contract mutually consented to by the employer and employee. Consequently, employees uncomfortable with their at-will status may want to attempt to negotiate some sort of employment agreement with their employer that gives them some measure of job security.8
(The above article is annotated)

Comparative Law 310 (1985). See also Daniel A. Mathews, Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings Law Journal 1435, 1447, n.54 (1975).
Id.
SeeMagnan v. Anaconda Industries, Inc., 479 A.2d 781, 784, n.8 (Conn. 1984) (“Scholars and jurists unanimously agree that Wood’s pronouncement in his treatise, Master and Servant § 134 (1877), was responsible for nationwide acceptance of the [At-Will Employment Doctrine]. They also agree that his statement of the [At-Will Employment Doctrine] was not supported by the authority upon which he relied, and that he did not accurately depict the law as it then existed.”) See also Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 88, 887, n. 14 (Mich. 1980).
Id.
It should be noted that the three largest classes of just-cause employees are federal and state employees, as well as union members.
Peters, Jeremy. 2005. Company’s Smoking Ban Means Off Hours, Too. New York Times, February 8.
Employees who report their employers violation of the Clean Air Act of 1970; Energy Reorganization Act of 1974; Occupation Safety and Health Act of 1970; Safe Drinking water Act of 1974; Sarbanes-Oxley Act of 2002; Solid Waste Disposal Act of 1965; Toxic Substance Control act of 1970 and the Water Pollution Control Act of 1972 cannot be terminated from their employment in retaliation for their actions. (This list is not meant to be exhaustive of federal statutes that prohibit retaliation against employees.)
I would strongly suggest that an employee makes sure that such an agreement is in writing and signed by someone with the authority to change his or her employment status.

See We, The People" on Face Book Email with questions or concerns.

©Copyright New Dawn Breaking 2009-2012