National Clothesline
Do you need a reason to fire?
Over the Memorial Day weekend, I addressed the North Carolina Association of
Launderers and Cleaners on employment matters, especially OSHA. It was a lively
presentation, which I thoroughly enjoyed.
The last question I was asked gave me the idea for this month’s column.
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I resisted the impulse to tell him that “yes, that was true in 1934,” and instead gave him the best answer a management labor lawyer could give.
First, North Carolina is, in fact, a “right-to-work” state. So are many other states, typically where unions do not have a
significant presence.
“Right to work” has nothing to do with the reasons for firing employees, except one — it has everything to do with a provision of the Wagner Act (also known as the
National Labor Relations Act) permitting employers and unions to agree that
employees, after 30 days, have to join the union or be discharged.
That provision, however, also provides that individual states can prohibit these
agreements, known as Union Shop Clauses. Those state laws are called “right-to-work” laws, based on the concept that an employee’s right to work cannot be lost because of his failure to join a union.
Despite these “right to work” laws, unions can and do represent employees in these states. The union
represents all employees in the bargaining unit, including non-members, but it
cannot force the company to fire them for failing to join. In most cases,
pressure put on employees by other employees in “right to work” states results in high union membership, despite the absence of a Union Shop
Clause.
Second, what my North Carolina drycleaner friend was really talking about was
the concept of “at-will” employment. Virtually every state in the country started out as a state based
on “at-will” employment, meaning that unless there was a written employment agreement, the
employee served at the will of his employer (and, logically, the will of the
employee himself).
Employees could quit, without notice, for any reason or no reason at all.
Employers could fire employees, without notice, for any reason or no reason at
all.
North Carolina is undoubtedly an “at-will” state, though I have yet to confirm that with research. Maryland is, too, as
well as Virginia, West Virginia, Delaware, and Pennsylvania, our four
neighbors. Unfortunately, the concept of “at-will” employment is for lawyers, and it has no real practical advantage in modern
labor and employment practice.
The Wagner Act, mentioned above, was one of the first times the “at-will” employment doctrine was modified. Employees, after 1935, could no longer be
fired because of their union activities. In 1938, Congress decided that at-will
employees were now protected from retaliation for making wage and hour claims.
In 1964, racial discrimination, along with other forms of discrimination, was
removed from the “at-will” doctrine.
Lately, courts have found all kinds of implied rights beyond anti-discrimination
laws for cutting into the “at-will” doctrine. Firing someone for a reason that would “violate public policy” is illegal in Maryland and many other states. Public policy is a vague concept
at times, but it certainly puts a damper on the idea that an employer can fire “for any reason at all” in an at-will state.
The law has evolved to the point that “no reason at all” is a dangerous reason to fire someone.
As I explained at the convention, if a protected employee is fired, you will be
asked for the reason to determine whether you are treating protected employees
differently from unprotected, at-will employees. (I suppose an unprotected
employee would be a 25-year-old, white male, with no health issues — perceived or real, who has no religious beliefs, whose ancestors were all white
settlers at Jamestown, and who has never expressed any views on any issue.)
If you articulate a reason for termination, such as absenteeism, and the
minority employee shows that a non-minority with a similar record was not
terminated, you will be required to articulate a non-discriminatory reason for
the disparate treatment. At will? I’m not sure it has any practical significance anymore.
Whether you have a company in a right-to-work or at-will state, you should
always articulate the reason for a termination.
Moreover, that reason needs to describe the behavior succinctly, avoiding too
many vague, subjective descriptions. “Inappropriate behavior” is not a good reason; “dropping his pants in front of customers” is a much better description of behavior that, just happens to be,
inappropriate.
Give the reason for termination, telling a compelling story in the process.
Forget relying on ancient legal principles such as “at-will” employment.
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