Private Sector Employees
In most states, the law presumes that private sector employees are employed “at will.” The employment-at-will doctrine is that both employer and employee can end the employment relationship at any time without notice or reason. This means that your employer has the right to terminate your employment at any time, for any reason, or for no reason at all or for a bad reason, so long as the reason is not illegal — even if your performance has been outstanding. The other side of the “at will” coin is that you, as an employee, can quit your job for any reason at any time. You cannot be forced to work for an employer. You don’t have to give your employer a reason for quitting.
The presumption for most non-union, non-governmental employees is that employment continues only at the will, whim, and discretion of the parties. If you are fired from your employment without just cause, you will be entitled to unemployment compensation benefits, but nothing more. Because of the employment-at-will doctrine, an unfair or unjust termination, without more, does not necessarily mean that your employer has done anything illegal.
Being fired because your boss just doesn’t like you, or wants to hire her cousin to take your job, or has set impossible standards without giving you a chance to prove yourself, doesn’t mean that your employer has necessarily done anything illegal. None of these bad motives alone is illegal. Also, the fact that you have worked hard for many years and were a good performer does not, standing alone, protect you from termination.
Most people believe an employer has a legal duty to treat employees fairly. Many people think an employer cannot fire an employee without just cause. Unfortunately, the general law is to the contrary. Because of the “employment-at-will” doctrine, employees have no general protection against unfair treatment. There is no “just cause” protection for non-union, non-government employees in the United States. This lack of protection is now the exception among highly industrialized countries. For example, all the countries of Western Europe have legislation prohibiting employers from discharging workers without just cause. In this country, the state of Montana, Puerto Rico, and the Virgin Islands have statutes prohibiting unjust termination. However, as of this writing, no other states have similar laws protecting employees. As a result, each year thousands of employees in the rest of the country are terminated unfairly and have no legal remedy to correct the injustice.
There are noteworthy exceptions to employment at will. Some commentators have stated that the at-will doctrine has been drastically eroded, and that the exceptions are now so numerous as to have “swallowed the rule.” The presumption of at-will employment can be rebutted by the relationship between a particular employer and employee. For example, there may be an employment contract which forbids unfair or arbitrary discharges. Many federal and state statutes place restrictions on the right to discharge. There are many laws forbidding various kinds of discrimination and other forms of wrongful discharge. For example, you cannot be fired solely because you are a woman. You cannot be fired because your supervisor does not like your religion. You cannot be fired for taking time off for jury duty. These and other exceptions to employment at will are discussed in later sections.
The collective bargaining agreement between a union and an employer determines a union employee’s rights. To determine whether a certain employment decision, for example, termination or demotion, was illegal, a union employee must first look to the collective bargaining agreement (CBA or contract).
Union employees are not usually employees at will. The collective bargaining agreement contains rules governing when and how discipline and discharge shall be meted out. The CBA generally drastically limits the employer’s ability to fire employees at will. Usually the employer must have just cause to terminate a union member’s employment. The union member has an established grievance procedure to challenge the reasons for his or her termination. Union employers often are required to utilize progressive discipline and issue written warnings prior to dismissal.
Employers must permit union members to use applicable grievance procedures to challenge decisions made about their employment. When employers and employees are unable to agree to a resolution of the grievance, the union typically has the right to have the matter submitted to an impartial arbitrator for a final and binding decision. Arbitrators often have the power to reinstate employees with or without backpay and their rulings are enforceable in court.
All union members have the right to see their union contract. If you don’t understand some of the provisions of the CBA, contact the union and speak to a representative. Your union exists to represent your interests, and should be able to explain your employment rights to you.
All public employees are protected from any termination that violates the United States Constitution or the constitution of the state in which they work. Frequently, an employee’s rights to freedom of speech, association, or religion, or freedom from unlawful search and seizure are at issue when an employee is terminated. In some circumstances, a government employee may have a property interest or a liberty interest in his or her position which cannot be taken away by the government, except through due process. Due process means generally that the governmental employer must give you notice of the charges against you and an opportunity to answer those charges before you are terminated from employment. If the reason given for your termination is one that would stigmatize you, jeopardizing future employment prospects, you have the right to a “name clearing” hearing.
A governmental employer may, however, establish work rules to ensure the efficient operation of the agency or branch of government or to maintain the public confidence in elected officials. Sometimes these rules place limitations on a public employee’s speech or conduct. Such limitations are lawful if the government’s interest in creating the rules outweighs the interest of the individual. If the speech or conduct disrupts the efficient operation of the government or would compromise the integrity of the office in which that person works, the employee may be fired for the conduct.
Most public employees who are in the civil service cannot be terminated unless the employer has just cause and the termination serves to advance the purposes of the agency. Non-civil service employees of the government have less protection from discharge, but they may have other legal protections. There may be a special statute that prohibits their termination without cause or the employee may have a contract with the governmental agency prohibiting such terminations.
Federal civil service employees who believe that they were terminated without just cause, who are in the “competitive service” and who have passed a one-year probationary period, or who are in the “excepted service” and have completed two years of service in the same or similar position, can appeal their terminations to the United States Merit Systems Protections Board (MSPB). The appeal must be filed within 30 days of the effective date of the termination. Employees who do not meet these criteria may still be permitted to appeal a termination by filing a claim with the U.S. Office of Special Counsel if they believe the termination was in retaliation for whistleblowing. If they believe that the termination was discriminatory based on age, sex, religion, disability, race, color or national origin, they must contact an Equal Employment Opportunity (EEO) counselor in their employing agency within 45 days of the termination notice. Most states have similar administrative bodies to hear appeals from employees who are part of the state civil or classified service.
Public employees who are union members and are covered by a labor agreement may also have the separate or alternative right to arbitration.
Certain categories of public employees do not have protection from unjust discharge. Political appointees, employees serving “at the pleasure” of the governmental unit, policy-making employees, fiduciary employees (those exercising independent discretion and who hold a special position of trust), or employees who serve in other positions that require special political loyalty may be terminated without cause or for political reasons.
If you are a true independent contractor, you are not an employee. Most federal and state laws protecting employees do not apply to self-employed, independent contractors. When a company does not retain the right to control and supervise the individual’s time, work performance, method of work, job activities and working conditions, there usually is no employment relationship. In determining the independent contractor issue, courts also often look at whether the individual is truly in business for himself or whether as a matter of economic reality, he or she is solely dependent on the company.
An employee of an agency, leasing, or staffing company that provides temporary personnel is not normally considered an employee of the worksite employer. However, there are many occasions when the worksite employer is considered a “joint employer” who is indeed responsible for discriminatory or other wrongful acts committed by its supervisors against such employees. Most temporary workers have no job security and no fringe benefits.
This is a selection from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.