At-Will Worker Woes
You can be fired for wearing a red shirt to work, for preferring the Yankees to the Mets, or for not attending a piano recital featuring your boss’s daughter. Sound ridiculous? Under the employment-at-will doctrine, workers may be terminated at any time “for good reason, bad reason, or no reason at all.” If you are an “at-will” worker, you should reassess this risk.
There are innumerable reasons for which an employer can legally fire someone, according to David Larson, Law Professor and Senior Fellow at Hamline University School of Law. “At-will means that I can arbitrarily choose” to fire someone, he says, “so long as I don’t violate any of the expressed prohibitions. Very few Americans understand how broad this rule is.”
Workers just don’t know much about this practice. “They say, ‘You’re kidding! I can be fired because I didn’t show up for my boss’s son’s soccer game?’ The reality is that, yes, you can,” adds Larson. People tend “to feel more secure than they are.”
If you are thinking of starting a new job, pay some attention to what the termination procedure is.
One reason so few people understand this concept is that labor unions have not done a particularly good job of educating American workers, Larson believes. Since unions have a presence in the workforce at large, he thinks unions should educate the public on this issue.
Legal Protection in Place
Joseph Z. Fleming, resident partner at Ford and Harrison, LLP, and a national resource on labor and employment law, reports, “The concept of at-will employment, which favored employers, has been eroded over the years–first by collective bargaining laws, and second by unions which have pushed for workplace reforms so that people have protection.”
You can be fired for almost anything today. But if you maintain that you are in a protective category, the burden then shifts for the employer to prove that they didn’t terminate you because you were in such a category, Fleming adds. As an employee, you have protection because of your:
- Minority status
- National origin
- Age (under the federal law, if you are over 40)
- Disability (mental or physical)—or the perception that you have a disability or communicable disease
- Injury (If you have worker’s compensation and are fired, you can sue for retaliation)
The at-will concept is riddled with statutory exceptions, and these exceptions really challenge this rule. “At-will termination sounds like it would be protective of the employer but it’s a little bit elusory–people who think that they can just fire people and don’t have to worry about it should take another look at the workplace laws and be careful,” Fleming says.
Fleming sees the “glass ceiling” for women as a limit that was created by some of the workplace laws. “We have a lot of minorities and women entering the workplace but the positions at the top are standing still. As people get older, they can work longer–you have a gridlock,” he explains. “When you begin to lay off by reverse seniority, the younger people go first so you may be eroding the groups that would be lasting in the workplace and that would be full of a different sex and minority than 20 to 30 years ago.”
An employer terminating someone should always make sure that they have acted correctly, that they have documented why they are terminating the person, and that they give the person an opportunity to complain if he or she feels the firing is unfair (that could be a defense for the employer).
If you are thinking of starting a new job, pay some attention to what the termination procedure is like at the company. Is it literal, absolute employment-at-will or are there some termination or discipline procedures? For example, there may be progressive discipline where if something goes wrong or you make a mistake, you are entitled to a warning and the next step is suspension.
When you have a, Larson suggests that you say to the potential employer, “I’m really excited about working here. I’m wondering whether you have any workplace management rules?” The answer will help determine how flexible the environment really is