Legal and Illegal Firings
(from
The Employers Legal Handbook
, by Attorney Fred Steingold, 2013,
and other sources)
In 1884 the Tennessee Supreme Court ruled that an employer can discharge or
retain employees at will for good cause, no cause, or even for cause morally wrong,
without thereby being guilty of legal wrong as long as the firing does not violate
legal contractual agreements made by the parties involved. This is the doctrine of
employment at will. It gives a company the same right as every individual employee,
who can quit for any reason whatsoever, no reason, or a morally reprehensible reason
(e.g. my boss is a redhead and I hate redheads, so I legally quit for that reason).
However, beginning in 1964 with Title VII of the Civil Rights Act, firings became illegal
if they were due to an employees race, religion, ethnicity, or national origin. Many
additional restrictions on firings have been added since, often depending on what
state you work in. In 1990 Congress passed the Americans with Disabilities Act (which
applies to all states). It prohibits discrimination against a qualified employee with a
disability (physical or mental) who can perform the job, even if she requires
accommodations. In addition, in 20 states today, you cannot be fired for your sexual
orientation or gender identity.
California extends more employment protection rights to employees than any other
state today. In California (but not in many other states), you are a protected
employee and cannot be fired for several reasons, including: Pregnancy, a
documented medical condition, your marital status, age (if you are over 40), current
military service or scheduled deployment with the Reserves or National Guard,
bankruptcy, your genetic information, your citizenship status (if you are a permanent
resident, temporary resident, or have worker status), serving on a jury, voting in an
official election, trying to form a union, filing a workers compensation claim, and
taking leave under the Family Medical Leave Act. In California, it counts as
discrimination (against a man) if you fire any male who is simply accused of sexual
harassment without conducting an investigation. In California, you cannot be legally
fired for reporting a safety violation to a regulatory agency. You also cannot be fired
in California for disclosing the amount of your wages (to anyone); for complaining if
you have not been paid; for complaining about workplace safety issues or reporting
such issues to a government agency; for complaining about or reporting unlawful
discrimination or harassment; for assisting someone else in reporting or opposing
discrimination, harassment, or retaliation; or for reporting a suspected violation of
state or federal law. However, to prove you have been illegally fired for any of these
reasons and win a court case, is not always easy. You need credible evidence that
you were fired for one or more of these illegal reasons (e.g. can you prove you were
fired for assisting your friend in filing a report of sexual harassment?). There are other
illegal reasons to fire someone: You cannot be fired in California for having AIDS or
HIV; for your political affiliations (allegiance to an official political party); for refusing
to commit illegal acts or for refusing to commit fraudulent business practices (e.g.
refusing to file a phony report with a state environmental agency, refusing to bribe
public officials, refusing to commit perjury, or refusing to spy). You cannot be fired for
participating in a regulatory or legal investigation into your companys activities.
Expectant mothers (and fathers) in California are eligible to take up to four months of
unpaid pregnancy/newborn disability leave and you cannot be fired for exercising this
right.
There are more reasons an employee may be legally protected from discharge in
California. An employer cannot legally fire an employee if the employer made a
promise of security to a job applicant. This promise may be made explicitly or
implicitly, to one employee or several, in employment contracts, employee
handbooks, job descriptions, advertisements as well as job postings, interviews, and
office communications. These contracts have been taken by courts as implied
contracts of continued employment for satisfactory work by the employee. Years of
solid performance reviews and good service may be interpreted by courts as
evidence of a promise of future employment. However, a poor performance review or
documented customer complaints higher than complaints against other employees
(for instance) would weigh against an implied contract and could constitute a
business reason to terminate an employee.
Employers are wise today if they fire someone only for a documented business
reason (which could include poor performance reviews of all employees at the same
level, documented customer complaints of all employees, sales and attendance
records for all employees), since such proof overrides the various legal protections. In
other words, you can still fire a protected employee if you can prove he or she is not
performing the job he or she is being paid to perform (IF you give the same
performance reviews to all employees).
Many companies today attempt to retain their at-will firing rights by including in the
application forms, employee handbooks, and offers of employment that the job is at
will and the employer can be discharged for any reason at any time, and by having
the employee acknowledge the at-will status of the job in writing. But even this
approach has been limited by courts if the employee falls under a protected class and
he/she can show they are being fired for being in the protected class (e.g. having
AIDS or HIV).
So, any regular employee can be fired legally for any reason; however, if the
individual is protected (see all the various protections), the employer will lose a
lawsuit if sued
unless
the employer can show a valid, documented business reason
for the firing (which was applied to all employees) which then overrides the
protection.
And so, it is today foolish to fire anyone for anything other than a documented
business reasonfor it could turn out that the person is protected (and you the
employer didnt know it), in which case the firing could be shown in court to be illegal.
EXAMPLE: Betty, a diligent worker at AutoTec, is offered a job by a rival employer.
She declines the job after AutoTecs president tells her shell have a job for life at
AutoTec if she continues to effectively manage her workload. Three years later,
AutoTec fires Betty, even though she has kept up with her work. Betty sues for
wrongful discharge, claiming AutoTec violated its employment contract with her by
firing her. Betty wins.
Betty would need evidence the promise was made (a witness or an email, for
instance) to win her wrongful termination case. If there is language in the employee
handbook which implies job security, then the employee would be entitled to job
security if he/she is performing well at work. Specific promises of job security are not
always necessary for a judge to rule that an employee cannot be fired arbitrarily.
Judges have allowed employees to collect damages or to be reinstated if the
employer merely implied that the employee wouldnt be fired without good cause.
EXAMPLE: After six months on the job, Tom is fired from Syspro, a small software
house. He sues for wrongful discharge, claiming that Syspro fired him without a good
reason even though its employee handbook led him to believe that hed only be fired
for good cause. The judge agrees. The court rules that the employers wording in the
handbook constituted an implied contract and the employer did not provide a good
cause (a job-related cause) to fire Tom.
Does the handbook list the reasons for dismissal (e.g. performing poorly on the job,
abusing sick leave, being excessively absent or tardy, possessing a weapon at work,
being dishonest, using alcohol or drugs at work, gambling at work, etc.)? If the
handbook states the employer reserves the right to fire an employee for any reason,
that makes it more difficult for the fired employee to win a lawsuit, but the handbook
cannot say this in one place and deny it or implicitly deny it in another place. As an
employer, dont take chances. If you fire only for just cause (for good reason), you will
be legally protected against lawsuits that attempt to show you fired illegally, whether
the employee is protected or not.
EXAMPLE: Rita has worked for Jones Enterprises for nearly 25 years. The company
fires her just three months before her retirement benefits are to become permanent.
In a wrongful discharge case against Jones, the judge finds that the company fired
Rita to save itself the expense of paying her the full benefit of her retirement
program. The firing breached the implied covenant of good faith and fair dealing
(and Ritabeing over 40is part of a protected class).
As an owner or manager, fire only for a legitimate business reason and have
documented support. Employers should be able to show: The employee knew his or
her job duties; the employee knew the consequences for failing to meet the job
duties, all employees have regular performance reviews; there were prior warnings
given to all derelict employees; there was an appeal process in place for an employee
to argue his/her case and/or to respond to allegations (if the violation was minor:
Employees should be fired immediately for major violations of company policy, or
even prosecuted if the case warrants it). HR should handle all documentation
consistently for all employees, from job advertisements, to job applications, to
performance reviews. Employees should sign their performance reviews.
EXAMPLE: The Mail Shoppe employs two men and one woman, Virginia, in its
packaging department. One Friday afternoon, the owner fires Virginia. She then files
a lawsuit claiming shes been discriminated against because of her gender. In court,
the Mail Shoppes owner is able to show that Virginia frequently put too little postage
on packages and often neglected to insert bubble wrap as instructed, causing
breakage and numerous customer complaints. The owner also shows that three
written warnings were given to Virginia over a six-week period. The judge dismisses
the gender discrimination lawsuit.
Use consistent procedures and documentations for all employees. If you let one
employee engage in questionable activities, you might find yourself facing a lawsuit if
you fire another for the same. If you electronically monitor your employees, obtain all
employees express consent to these specific practices when each person is hired,
include your monitoring policy in your company handbook, and do not monitor only
the younger workers or female workers, for instance.
EXAMPLE: Andrew, a black nurse, is a half-hour late for work three days in a row. His
employer, a medical clinic, fires him. In suing for wrongful discharge based on illegal
discrimination, Andrew shows that two white nurses had been similarly late in recent
weeks but received only a verbal warning. Even though excessive tardiness is a valid
business reason for firing someone, the jury awards damages to Andrew because the
employer applied the rules unevenly and unfairly, and so the employer is found guilty
of racial discrimination. (If Andrew were white, the employer is guilty of treating his
employees inconsistently, but Andrew would not fall under a protected class and so
could not utilize the inconsistency to his advantage in court, under existing law.) If
you are not subjecting all your employees at the same level to the same rules, one of
those not treated the same may fall under a protected class, in which case he/she
could win a lawsuit for workplace discrimination.
EXAMPLE: An insurance brokerage firm received complaints that Ralph, a senior vice
president, sexually harassed other employees. Ralph denied the charges, so the
company interviewed 21 people who worked with Ralph, including 5 that he asked to
be interviewed. The company concluded it was more likely than not that harassment
had occurred, so it fired Ralph. Ralph sued for wrongful discharge, claiming he had an
implied contract requiring good cause for firing him and that there was no good cause
because it had not been proven he had engaged in the alleged misconduct. The court
ruled it wasnt necessary for the company to prove that Ralph had actually
committed the sexual harassment. The company had only to show that it had a good
faith belief that Ralph had engaged in the misconduct. The results of the companys
extensive investigation were sufficient to establish that good faith belief. The
employer has the right to fire someone he believes, upon the strength of a good faith
investigation, is engaging in activities prohibited at the company.
Employees can be laid off if business is not going well. But sometimes the layoff is a
smokescreen for getting rid of employees for illegal reasons. If a layoff affects a
legally protected employee
only
, the employer is vulnerable to a lawsuit.
If your employer creates an abusive work environment for you; insists you put in
excessive overtime; demotes you without good reason; tells you to quit or you will be
fired; or substantially changes your duties without good reason, this counts as being
fired (constructive discharge). Now the question becomes if you are part of a
protected class and this treatment of you was inconsistent with the treatment of
others.
A recent example: The Twitter account @YesYoureARacist revealed the identities (by
photos) of those who marched in favor of white nationalism at Charlottesville (in the
hopes of getting these individuals fired from their jobs). This march unraveled when
Heather Heyer, aged 32, was killed. She was marching against the white
supremacists. She was a paralegal. If a client calls your business and says it has
come to their attention (through photos, online media, or Twitter) that one of your
employees appears to be a Neo-Nazi and was marching, what should you, the
company president, do? There are two issues. One is the internal employee issue and
the other is the external public relations issue. If the allegations are confirmed, the
employer can decide to rehabilitate the person and change his/her ways; the
employer has the right to attempt that. The employer can also choose to fire the
individual if it is causing uneasiness or hostility between other workers, and/or if it
causes your company to gain unwanted negative publicity (and/or to lose customers).
Even if the Supreme Court never rules on whether or not it is legal to discriminate
against white supremacists, your company can make it clear from the beginning that
it does not tolerate discrimination against anyone, including someones LGBTQ
identification. This is also your companys right, but it has to be explicit as a company
policy that all employees see and agree to before being hired.
EXAMPLE: Bridgette is a new employee at a bank. Her boss, a married man, is
harassing her. Ken tells her to wear more attractive clothing and criticizes her work
unfairly, repeatedly. This is now a hostile work environment. Bridgette reports Ken to
HR and hopes the behavior will stop. Bridgette is shocked when she is let go. Was this
firing illegal? California law includes protection from firing for reporting sexual
harassment,
but
unless Bridgette has evidence she was harassed (or being subjected
to a hostile work environment), the company can claim they fired her simply to let
her go (invoking their at-will firing rights). The company could be in danger of losing a
lawsuit if it turns out that Bridgette falls under a protected class
and
if her
performance reviews and other employee documentation showed she was as good as
any other employee.
Business Ethics
Essay I
Write an essay about 5 pages long with 12-point font, 1.5 spacing between lines, and
standard margins. Essays are due by the beginning of class on Friday, March 15. You
may submit a paper copy to me or email your essay to me as an attachment (at
hpressman@csun.edu) but I must receive your essay, be able to open it, print it, and
be able to read it, by the deadline in real time, or it receives the late penalty (no
exceptions). Once I open and print your essay, I will respond to let you know I have it.
So, even if you sent it, but I did not receive it, by the deadline in real time, and it was
an electronic error that was the cause of my not receiving it, you still receive the late
penalty. The late penalty is: -10 points every 3 days your essay is late, no exceptions.
Essays are worth 100 points: 90 for content and 10 for grammar.
Prompt: Choose any 5 of the following 8 cases (A-H) below, and answer questions (I)
and
(II) for each case you chose, clearly and thoroughly. Do not use any outside
information but only what is given in this handout and our textbook to make your
argument about each case. (Many of the cases are real, but do not research any more
about them, even if you find out my report of the incident is somewhat inaccurate;
argue only about the case as I have presented it and use only the information about
what constitutes a legal or illegal firing I have given in this handout.)
(I) In the case as described, would the firing be legal in California? Explain whether
the firing would be legal or illegal in California, and why, given all the relevant criteria
from the handout above that make a firing legal or illegal. (Be sure to mention points
from the handout, for either side of your argument.)
(II) In the case as described, would the firing be ethical? To answer this, apply one of
the two major ethical theories given in our text: utilitarian theory (the greater good is
produced) and Kantian/deontological universal principles of right and wrong (it is
always wrong to break any absolute moral rule or violate someones absolute ethical
rights). Justify your conclusion.
Case (A): Tim owns a Hooters restaurant. One of his servers, Gina, who is 20 years
old, has been with the restaurant 2 years. She has recently undergone a breast
reduction
surgery. Subsequently, she now has the smallest breasts of any server at
the Hooters restaurant. Gina did not tell Hooters about the operation beforehand, nor
did she tell the company why she elected to have it. Management decides she no
longer fits their image of a waitress (despite doing okay as a waitress so far), and
they think they can find another server with larger breasts. Management decides to
give Gina two weeks notice. Was this a legal firing in California? An ethical one?
Case (B): Ron loved music and was lucky enough to get a job at a record company. It
was an entry level job, but he did get perks: He could meet with musical artists and
have lunch with them. To promote the artists, those in charge of promotions would
get hundreds of CDs to give to radio stations to promote a new album or band. Ron
noticed his supervisor, Dan, was always taking hundreds of CDs but he (Ron) never
saw Dan give them to any outlets that would air the music. He soon found out why. It
turned out Dan was making extra money by selling the promotional copies to record
stores in town (which then sold them). Ron did not want to report his supervisor Dan,
but he eventually thought it was illegal to remain silent and if thought if he failed to
report it, he could be viewed as an accomplice. So, Ron mentioned to Dans
supervisor, Steve, what was occurring. The practice was deemed by Steve to be
highly improper. Dan, Rons supervisor, was then fired. But then, after thanking Ron
for bringing the matter to his (Steves) attention, Ron was also fired! It was explained
to Ron that though he did the right thing, he had rendered himself unemployable at
the company. With his demonstrated lack of loyalty to his supervisor, no other
supervisor would want to work with him. Nobody likes a snitch. Was Ron legally
fired? Was he ethically fired?
Case (C): Gregory Salcido was a high school history teacher and a member of the Pico
Rivera City council in southern California. In 2018 one of his students (who was
wearing a Marine sweatshirt and whose older brother is a Marine) filmed Salcido with
his cell phone and released the footage on the internet. Salcido could be heard and
seen saying to his students: The military are not high-level bankers, they are not
academic people, they are not intellectual people. They are the lowest of the low.
And: I dont understand why we let the military guys come over here and recruit you
at school. We dont let pimps come in the school. He also told the student who was
wearing the Marine Corps sweatshirt to not join the military. The El Rancho Unified
School District released a statement a few weeks after the video went viral: Our
classrooms are not the appropriate place for one-sided discussions that undermine
the values our families hold dear. Salcido was terminated by El Rancho High. Was
this firing legal in California? Was it ethical?
Case (D): Gustavo is the manager of a Target in Santa Barbara. He notices his grocery
department manager, Jake, on Sunday (a day he was not scheduled to work), walking
his dog in a public park and wearing a white supremacist tee shirt and an anti-
immigrant cap, which read, respectively: Make America White Again and No Legal
Rights for Illegals. Gustavo snapped a photo of Jake to prove what he saw (it was in
fact Jake and he was in fact wearing those items), and then Gustavo notified upper
management of what he saw. Target decided to give Jake notice of termination. Was
this a legal firing in California? An ethical firing?
Case (E): A chapter in a public California high school biology textbook (the only
biology textbook used in the district) claims both the pill and the Depo-Provera shot
cause young women to develop cancer and/or to become infertile at high rates. The
book cites only one study in a footnote (the only known study that reports this as a
possibility). That one study claims that the evidence
is consistent with
the hypothesis
that the pill (used nation-wide beginning in 1960) and Depo-Provera shot (used
nation-wide since the 1990s) cause women infertility problems and higher cancer
rates later in life. (There are dozens of other studies showing this is false. Over 90%
of studies show that pill users and Depo-Provera shot-takers have the same
percentage of cancer and infertility as women who do not take either; the only
increase in rates is for women who smoke cigarettes and take the pill or get the
shot.) The biology books author believes sex is moral only within marriage. The book
reports (truthfully) that neither the pill nor Depo-Provera prevents STDs and that
neither is 100% effective against pregnancy. Does the high school district have the
legal right to fire the person (Mr. Jones) who is solely in charge of textbook adoptions
for the district, for adopting this textbook? Would it be ethical to fire him?
Case (F): Isabelle works in an office building where smoking is not permitted, so she
can only smoke on her breaks and has to leave the building to do so. Most of her
fellow workers congregate around the back door to smoke their cigarettes, but
Isabelle prefers to sit in her car and listen to music on the radio during her 15-minute
breaks. One day, as she had done dozens of times before, Isabelle was sitting in her
car smoking a cigarette during a proper break. This time, however, the owner of the
business happened to look out his window and saw Isabelle smoking in her car. For an
unknown reason, he decides to fire her the moment she returned from her break. Is
this a legal termination in California? An ethical one?
(G) A woman walking on a public sidewalk in sunny southern California was caught on
cell phone video speaking to an Asian American family in Long Beach on Friday,
March 2, 2018. The clip was posted to Facebook and went viral. The woman, who
appears to be white, walks away from the camera and says: You need to go back to
your country to Tony Kao, his wife, and their baby. When Kao walked after the
woman asking her what she meant, she continued to speak as she walked away: its
not safe because there are too many people like you here, invading
youre making
my culture extinct. The woman was later identified as 58-year-old Tarin Frances
Olson, a therapist, author, and professor in the Counseling Department at Golden
West College in Huntington Beach, California. Golden West College responded to the
incident by posting on its Facebook page: It has recently come to our attention that
there was a video posted on Facebook of a GWC faculty member making comments
that the College does not condone or support. Golden West College believes in an
inclusive and welcoming environment for all students. If the college decided to fire
her (which they did not), would it have been legal? Would it have been ethical?
Case (H): A university professor publishes an academic book. This book is packed
with statistics and data (references and sources) covering the past 30 years of IQ
testing in the U.S. at many schools (K-12) and the military, from across the U.S. From
the statistics the professor concludes whites are more intelligent than blacks, even
when the income and education level of the black and white test-takers are equal.
This book angered many people and scientists who believe there is no innate
difference between any races in intelligence: that differences are environmental or
educational. The professors book attempts to prove otherwise, though some scholars
(such as Stephen Jay Gould) published an article showing flaws in the books
arguments. Does the university have the legal right to fire the professor (who doesnt
have tenure yet) in California, if it is discovered later that some test scores (in other
cities) were left out of his book? Does the university have the right to fire him if it is
learned that on many of the IQ tests several participants left their race undisclosed
and the professor purposely did not factor those tests in, or disclose this fact in his
book? Would the firing be ethical?
