Volume 2, Number 4
|Table of Contents|
A Quick Test To Assess The Legality Of Firing An At-Will Employee
The checklist that follows may be used to determine whether the discharge of an at-will company employee would be lawful. It applies to the discharge of both nonunion and union employees. A key to the answers appears at the end of the checklist.
1. Will the employee be discharged for any of the following reasons?
2. Will the employee be discharged for acting in concert with other employees to:
3. Will the discharge violate any type of implied contract or your own Employee Handbook?
4. Will the discharge constitute a tort?
5. Will the employee be discharged for any of the following acts or omissions?
6. Will the employee be discharged for refusing to do a job he or she considers unsafe (if objective facts back up that the job is unsafe, this gives rise to a possible OSHA violation)?
7. Will the company deny a hearing (with witnesses present) to provide the employee an opportunity to admit or deny the reasons for discharge?
8. Has the company failed to give the employee an oral or written warning to correct the conduct?
9. Has the company let other employees get away with what the employee is to be discharged for?
10. Did the company promise the employee, at the time of hire or subsequently, that "the job will be yours for as long as you want it?" Was the employee promised an "annual salary"?
11. Will the employee be discharged for a physical condition (for example, high blood pressure, diabetes, or a back condition) in violation of federal and state statutes prohibiting discrimination on the basis of disability or FMLA leave? Has the company tried to make reasonable accommodations for the employee to work at some other job?
12. Is there no written documentation (for example, prior reprimands) of the conduct leading to the employee's discharge?
13. Did the employee give up a job and/or home in another city to work at the company? Were promises made to induce the employee to do so that were not kept?
14. Will the company call the discharge one motivated by a need for reduction in force when in fact the reason is unsatisfactory work performance?
15. If the company plans to hold an investigatory interview prior to the discharge, will the employee be denied a union or coworker representative, despite his or her request?
16. Ask yourself "Am I retaliating in any way 'against an Employee's protected rights?"'
Key: each of these questions states the facts of a state or federal case litigating an employer's right to discharge an at-will employee. In each case, the employer answered "yes" - and lost. Still, the answer to any particular questions does not necessarily determine whether the discharge contemplated would be lawful. It is the process of asking and answering these questions - with the help of counsel - that can alert a company to potential liability and thereby help it avoid liability. - Arthur D. Rutkowski, J.D., partner, Bowers Harrison, LLP, Evansville, IN. Copyright by Arthur D. Rutkowski. All rights reserved.
Copr. (C) 2006 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.
Originally published in Employment Law Update, August, 2003Copyright © 2003 Rutkowski and Associates, Inc.: Arthur Rutkowski, Barbara Lang