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Free Human Resource Information
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Job Is Secure To Workers |
by Geoffrey Glaser
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 through our legal hotline, which is included
in our package of Outsourced Human Resource Services, by calling us at
708-645-2530 24 hours daily.
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