Monday, March 27, 2017

Bring me the head of employment at will

At his always excellent Connecticut Employment Law Blog, Dan Schwartz recently asked the following question: “What Does ‘At Will’ Employment Really Mean?”

Dan argues that while employment at will is still a valid legal doctrine, if a judge or jury cannot view your termination as “fair”, then they will look for another (illegal) justification for your decision. That examination may not go your way.

Dan is 100 percent correct.

As I wrote a year ago:
Employment at will is dead.
Do you have the right to fire an employee for no reason? Absolutely. Yet, if that employee is African-American, Other-American, a woman (or a man), pregnant or recently pregnant, suffering from a medical condition (or related to someone with a medical condition, or you think has a medical condition but doesn’t), injured, on a medical leave or returning from a leave, religious, older (i.e., age 40 or above), LGBT, serving in the military or a veteran, a whistleblower, or otherwise a complainer, the law protects their employment. Which means that if you fire them, you better have done so for a good reason. And, if you look at those categories, most of your employees fall under one of more of them. In other words, while you are an “at will employer,” that doesn’t really mean anything anymore. Employees just have too many protections. 
So, how do I suggest you respond? Follow my Golden Rule of Employee Relations. Do unto your employees as you would have your employer do unto you. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee’s favor.
No, you don’t need a reason to fire someone. But, if challenged, no one will understand why you don’t have one, or, if you have one, why it isn’t a good one.

Or, look at it this way. If judges and juries will run your employment decision through the fairness filter, shouldn’t you save yourself some time, money, and aggravation and do the same before reaching these decisions?