This week The Emplawyerologist wraps up its mini-series on employment-at-will. So based on the last two posts: As long as an employer uses clear disclaimer language in a contract or handbook, s/he can terminate the employee under any circumstance without fear of a wrongful discharge suit, right? Well, not exactly. General rules and presumptions usually have exceptions and employment-at-will has them as well! Let’s look at the most common ones.
Is your employee often absent due to medical issues? Can you fire him or her? Not necessarily. Do you have 50 or more employees, either in one location or in multiple locations within a 75-mile radius? Has your employee worked for you for at least a year and for at least 1200 hours? If so, s/he may be entitled to up to 12 weeks’ unpaid, job-protected leave under the Family Medical Leave Act of 1993 (FMLA). If you terminate an employee eligible for leave under this statute will render you liable for damages.
Suppose that same employee has only been with you for 6 months. Or maybe you have only 25 employees. Are you off the hook? Not necessarily. Does the employee have a condition that may impact a major life function, such as walking, breathing, sitting for periods of time or blood circulation? Leave time may be a “reasonable accommodation” under the Americans with Disabilities Act (ADA) or the Americans with Disabilities Act Amendments (ADAAA). Employers with 15 or more employees cannot discriminate against and must make reasonable accommodations for employees with disabling conditions under the ADA(AA). Maybe you somehow found out that your employee has a genetic pre-disposition to a potentially debilitating disease. Can you terminate someone due to a predisposition rather than a disability or medical leave? The Genetic Information Nondiscrimination Act of 2008 (GINA) says no. If your employee is pregnant, the Pregnancy Discrimination Act, (PDA) may come into play. Federal statute includes pregnancy as a type of sex discrimination. You see where this is leading, right? If you want to terminate this employee, make sure the disability, genetic information or pregnancy is not the reason.
What if you just don’t like the person? That depends. For example, you do not like minorities but could not find anyone else qualified for the job and now you have changed your mind. Can you terminate him or her? S/he is an employee-at-will. You have the appropriate language in the employment contract s/he signed, and your employee handbook. Can you now discharge the employee? Title VII of the Civil Rights Act of 1964 forbids discharging an employee based on race, color, religion, sex or national origin.
Do you have employees over age 40? Employers sometimes fire older workers because they do not want to compensate their years of experience, or because they do not want to provide retirement benefits, or they simply assume that an older worker will be unable to keep up with younger workers. Without an otherwise valid reason for termination, such actions are prohibited under the Age Discrimination in Employment Act (ADEA).
Are you considering a mass layoff or plant shutdown? Do you have 100 or more employees? If yes, you may be required under the Worker Retraining and Notification Act (WARN) to provide 60 calendar days’ advance notice. This law protects both hourly and salaried employees as well as managers and supervisors.
Employers must also beware of anti-retaliation laws. If your employee complains of discriminatory behavior, ADA or FMLA violations and you then terminate him or her, you can be liable for retaliation even if the underlying complaint has no merit. Similarly, under federal and state whistleblower laws, employers cannot discharge employees who report what they reasonably believe to be illegal or unethical activity by the employer . The employee’s belief need not be correct; it only needs to be reasonable. Many of these statutes will be subjects of future posts on The Emplawyerologist. The purpose here is to alert you to the existence of these statutes and their potential impact on employment-at-will.
These laws may not apply, if you are too small. The statutes discussed here are federal laws. The state(s) where you do business, and/or have employees is likely to have its own anti-discrimination laws that will limit how and when you can terminate your employees. Assuming you could escape liability under federal or state laws, you as an employer should also be aware of the public policy exception. Even when specific criteria of a statute are not meant, there is a public policy that drives the statute. For example, on federal and state levels we have a public policy against racial discrimination. An employee might argue that his/her termination violates that public policy, even though specific statutory criteria are not met. While not a strong argument, you should be aware of the possibility.
But what about employment-at-will? Remember, under employment-at-will, either the employer or the employee can end the employment relationship at any time for any lawful reason. As you can see, firing someone based on race, creed, gender, religion, sexual orientation, disability and in some cases for taking or requesting medical leave, or in violation of any of the statutes discussed above, are not lawful reasons. Employment-at-will then, will not be a valid defense in those cases. Employers therefore should have at least a rudimentary familiarity with the laws we have discussed in this post and make sure that their motives for terminating their employees are not discriminatory or retaliatory within the meaning of any of these or similar state statutes.
With all these statutes, is there really any point in an employer bothering with at-will disclaimers? If you do not want to be compelled to retain an employee for a minimum duration or to follow a specific progressive discipline policy, or never be able to terminate unless you can prove significant performance or misconduct issues, then yes, there is still ample reason to ensure that you include at-will disclaimers in your contracts and handbooks. Without such disclaimers, even if you “beat” allegations of discrimination or violations of the other laws we have discussed, you could still be stuck with employees that are not a fit for your company.
That concludes The Emplawyerologist’s “mini-series” on employment-at-will, a key provision employers should consider including in their employment contracts. Join The Emplawyerologist next week -same time, same station – for a discussion on another employment contract provision that is gaining popularity: arbitration agreements.
The content of this post is intended for informational purposes only, is not legal advice and is not intended to create an attorney-client relationship. Always consult with local employment counsel on all issues discussed on The Emplawyerologist.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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