At Will Employment Issues
According to information found at the National Conference of State Legislatures website. “Employment relationships are presumed to be “at-will” in all U.S. states except Montana.” This means that employers and employees can end the relationship at will or without cause or threat of retaliation from the termination of employment of either party. There are not any legal requirements that surround the termination such as a period or a specific reason involved.
Every employee in the United States, except Montana, is considered to be an at-will employee unless he or she has signed a specific contract with the employer at the time of hire. The contract must outline specific legal requirements and expectations. However, these may not include any form of withholding employment based on issues that concern legally mandated time off such as jury duty, military duty, or family leave.
It is essential that employers understand the law and what it means to be an at-will employer. There are some exceptions to the laws which spell out specific boundaries that employers must remember. For example, employers may not use any form of discrimination toward an employee according to the Americans with Disabilities Act. This means that if a person is disabled, the employer must make reasonable accommodations for that employee and may not use the disability against the person.
Employees are protected from illegal or retaliation dismissal such as if the employee acts within the legal boundaries. For example, if an employee complains about his or her employment, such as the case with Ellen. She started a blog to protest the CEO’s bonus, noting that no one below director has gotten a raise in two (2) years and portraying her bosses as “know-nothings” and “out-oftouch” In this case, she cannot be fired for the blog, unless it specifies in her contract that this behavior is breaking a rule that she agreed to. Although the behavior is unprofessional; it is not subject to dismissal. She may be given a warning that the blog is unprofessional and that she is advised to take it down, it is in the gray area of freedom of speech.
Another case of employee behavior that must be carefully attended to is the case of Anna. Anna’s boss refused to sign her leave request for jury duty and now wants to fire her for being absent without permission. Although Anna was missing work, she attempted to get her request signed. Because it is a public duty to serve on jury duty, and not going is punishable by law, Anna made the choice to attend to her civic duty and did let her boss know that she was going to be gone. Legally, he cannot fire her for missing work over jury duty. Jury duty and military service are two of the public service acts that are covered by the Restatement (Third) of Employment Law ("At-Will Employment - Overview", 2016) Anna was within her rights as an at-will employee to expect that she still has a job when she returned from jury duty. Anna should have the opportunity to go over her boss’ head and find upper management to discuss issues that involve her boss, such as human resources personnel. In this way, Anna will have better crisis management skills and not have to face possible loss of employment for doing her civic duty.
When an employee is asked to perform a task that is illegal, that employee has the right to refuse and expect that he or she will not be fired for being honest. For example, one of the department supervisors requests your approval to fire his secretary for insubordination. Since the secretary has always received glowing reviews, you call her into your office and determine that she has refused to prepare false expense reports for her boss. This is a direct violation of the Employment law stated above. This honest employee is protected, however, her boss may need to be fired for wanting to fake the expense reports. This employee should not have been placed in the position of falsifying documents for her boss. Her boss, on the other hand, needs to be counseled on the professional way to handle financial issues and possibly retrained before letting him go. Although his financial issues are deeply concerning, a lawyer should be consulted before any definite action is taken against him. ("At-Will Employment - Overview", 2016)
Although the above-mentioned employee issues may not be resolved by letting them go, one more employee must be examined for the legalities that are involved in his case. Bill has a Blackberry that was issued to him as part of his employment. He is to use it for work only. Recently it was discovered that Bill was using the blackberry for a personal business outside of the company. This would be misuse if company property and Bill signed a contract that stated he would only use the phone for company business, and provide his phone for personal use. If there was not an agreement before Bill took possession of the phone, there is not much the company can do, except change policy and offer Bill a change to change his behavior. In addition, the company may tell Bill that he no longer has the privilege of a Blackberry. He may not be fired over this, specifically. However, he may be fired because he is an at-will employee. He may be told that he is no longer needed, or the position is no longer needed. Handling the situation in this way will protect the company from a lawsuit. This is a delicate situation because, if Bill is fired too close to the discovery of his misuse of company property, he may have a case against the company. For the protection of the company, it would be best to wait for a significant amount of time to pass. This will enable the management to see if Bill does anything else. Time would allow research into the possibility of the misuse of the phone is eligible for a case of theft of company property since the company was paying for his phone bill and he was using it for his own business outside of the company. In this particular case, it would be best to consult a lawyer and get guided legal advice before taking action irrationally. ("At-Will Employment - Overview", 2016)
Oregon has followed the at-will employee guidelines and doctrine since the early 1980’s, and most employers abide by the law closely. There have been a few cases of wrongful discharge. However, those cases were not substantiated, and there was probably cause. However, most employers are careful to strictly follow the laws closely to avoid a lawsuit. For example, the case of Kemp v. Masterbrand Cabinets, Inc. According to information found on the __ website, “the Oregon Court of Appeals issued its opinion in Kemp v. Masterbrand Cabinets, Inc., holding that the plaintiff’s common law wrongful discharge claim was not precluded by the statutory remedies then available under Oregon or federal anti-discrimination laws, and that claim could properly be decided by a jury.” ("Oregon Court of Appeals Continues Debate About Status of Wrongful Discharge Claims In Oregon in Kemp v. Masterbrand Cabinets, Inc. - World of Employment", 2013). This means that a jury can decide if the suit is in favor of the plaintiff or the accused.
In conclusion, the at-will employee may be fired at any point without explanation, however, if there is an explanation given, the circumstances that surround the termination of employment on the part of the employer should be substantial and not biased or based on any bias that may land the employer in court. This is a very tricky and delicate situation for an employer, as evidenced by the cases that were presented in this paper.
Sometimes it is necessary to consult with an attorney before handling a delicate employee situation. It is also imperative that employers cover their legal obligations through contracts that spell out exactly what is expected of the employee and the employer. A contract will protect both of the parties that are involved in an employment situation.
References
At-Will Employment - Overview. (2016). Ncsl.org. Retrieved 3 May 2016, from http://www.ncsl.org/research/labor-and-employment/at-will-employment-overview.aspx
Oregon Court of Appeals Continues Debate About Status of Wrongful Discharge Claims In Oregon in Kemp v. Masterbrand Cabinets, Inc. - World of Employment. (2013). World of Employment. Retrieved 4 May 2016, from http://www.stoelrivesworldofemployment.com/2013/07/articles/states/oregon/oregon-court-of-appeals-continues-debate-about-status-of-wrongful-discharge-claims-in-oregon-in-kemp-v-masterbrand-cabinets-inc/
