October 30, 2012 @ 12:28pm | Julie Tappero ~ West Sound Workforce
“I can terminate anyone at any time for any reason. This is an at-will state.” Ever hear those words from an employer? Ever think those words yourself? Ever wonder if the law is on your side? As is often the case with employment law, the answer is … maybe and maybe not.
Washington is an “at-will” state. But that doesn’t preclude the notion of “wrongful discharge.” As employers, it’s important we understand both of these terms in order to stay out of legal trouble.
A quick internet search for wrongful discharge suits turned up these recently filed lawsuits. Tiffani Webb, a well regarded high school guidance counselor in New York, was terminated after modeling pictures of her in lingerie taken 17 years prior turned up on the internet. Michael McClatchy was terminated from his South Carolina police job after he issued a speeding ticket to a beloved Clemson University football coach. Mike McQueary, the Penn State assistant football coach who testified against Jerry Sandusky, claims he was fired for that testimony. And, on a more local level, Scottie Lynn Nix claims she was fired from her job as a Tacoma city auditor after she reported alleged mismanagement at Tacoma Rail. All of these individuals have filed wrongful discharge lawsuits against their former employers.
First, what does Washington law say? Washington is indeed an at-will state. This means that businesses may terminate at will, without giving the employee notice, warnings, or reasons, and that an employee may also resign without notice. However, there are some reasons that you cannot terminate an employee. These include situations where an employee has filed a workplace rights complaint, a safety complaint, or a workers comp claim.
What might constitute a workplace rights complaint? For example, an employee complains that he or she is not being allowed to take legally prescribed breaks — which are a right under the law. Or perhaps your employees are talking amongst themselves about parity of their wages. This is a legally protected concerted activity. Employees have the right to discuss their working conditions or wages under the law, and cannot be punished or terminated for doing so.
So what constitutes wrongful discharge? In a nutshell, it is when a termination violates an employment contract, the employers’ policies, or a provision of law.
Most employers are aware that you cannot discriminate based on protected classes. This extends to termination as well. You can’t terminate based on race, creed, color, national origin, sex, marital status, age (over 40), sexual orientation (including gender identity), disability, HIV/AIDS, Hepatitis C, or use of a service animal. Protection also extends to pregnancy status as well as to military and veteran status.
There is also a public policy exception to the at-will doctrine. This comes into effect in several instances, which include when an employee is terminated for: 1) refusing to do something that is illegal, 2) performing a public duty such as jury duty, 3) retaliation for whistle blowing, and 4) exerting a legal right such as organizing under a union.
It’s not uncommon for employers to proscribe in their handbooks which employee behaviors can result in termination. Employers also may want to describe disciplinary steps that will be followed leading up to termination. While these policies can be beneficial in many ways, it’s important to always include language that preserves the employees’ at-will status. Without that language, an employer cannot terminate an employee without following the proscribed steps, and if they do, it may very well be a wrongful termination.
Employers can also unintentionally create an employment contract through wording in an employment offer letter. Have your attorney review your wording for clarity and to ensure you’ve preserved the employee’s at-will status.
This year, the National Labor Relations Board (NLRB) inserted itself into the at-will arena through decisions about employee handbooks for the American Red Cross and Hyatt Hotels. Many business people have pondered why the NLRB has stepped into this discussion. The NLRB asserts that the at-will statements in these employee handbooks were overly broad, resulting in the limitation of employees’ rights to engage in concerted activity.
NLRB’s issue is with the standard at-will language often used by employers, which states that the employees’ at-will status can only be altered by written document from a specific company executive. The NLRB believes this violates employees’ rights to organize and protect their employment status. This may be a bit of a stretch, and may not hold up if challenged in court. But to be safe, employers can add a further statement clarifying that the at-will disclaimer is not intended in any way to interfere with or limit an employee’s rights under the National Labor Relations Act. Check with your attorney for the best wording for your business.
One thing our state does do is give employees the right ask for the reason that they were discharged. They can do this by submitting a request in writing to their former employer. Employers have 10 days to reply in writing with the reason for the termination.
If you find yourself in this position, be sure that you respond accurately to the request. You don’t want to give conflicting information. For instance, you don’t want to say to an employee as they’re being discharged that due to employment at-will, there’s no reason to be given, then respond to a written request that it was because of their attitude, and then put on their unemployment form that it was because they violated company policy by failing to show up for work or call in. Inconsistencies open your company up for the potential of claims.
There are steps businesses can take now to prevent the pain of a wrongful termination claim in the future. They include:
Have an attorney review your employee handbook and standard employment offer letters to ensure that you are preserving employees’ at-will status and are not creating an unintended employment contract.
Train yourself and your supervisors on laws pertaining to discrimination and retaliation and stringently enforce those laws in your workplace. Take employees’ complaints or allegations seriously and thoroughly document your investigation and conclusions.
If you have a proscribed disciplinary process, make sure it is followed carefully. And document, document, document! It’s a lot easier to prove that a termination was merited when documentation is available to back up the claim.
Recognize that your employees have rights that are protected under the law. Respect them and their rights as you make your business decisions.
A Missouri jury gave a black detective $6.5 million in a racial discrimination wrongful discharge suit. An Illinois court gave a settlement of over $3 million to an employee who was terminated shortly after testifying in a co-worker’s racial and sexual harassment suit. Mike McQueary is suing for over $4 million in damages in his lawsuit against Penn State. Yes, Washington state is an at-will state. But poking your nose across the line of wrongful discharge can cost your business a lot more than a preventive consultation with your attorney will.