At-Will Employment - Myths and Realities

 
Jobs Employment, Career Job, Employment Job

 by James W. Johnston, Esq.

 

Few subjects in the field of employment law have caused more confusion in the minds of the general public than the doctrine of at-will employment. In general terms, an employee who is not a member of a union and is not a government or other pubic employee, is considered to be an at-will employee absent the existence of a contract specifically saying otherwise. Therefore, the majority of employees in the United States are at-will employees. Many at-will employees are under the mistaken belief that they can prevail in a wrongful termination claim simply by proving that their employer acted unfairly in firing them. In many instances,  however, that is simply not the case.

What is At-Will Employment? 

In a nutshell, at-will employment is a type of employment contract where either the employer or employee may terminate the employment relationship at any time, with or without cause. In other words the employer may fire the at-will employee whether or not it has a good reason, and the employee may quit at any time, whether or not he or she has a good reason. Although the at-will employment doctrine gives an employee the right to quit for any or no reason, this rule most frequently comes into play as a defense used by employers who have been accused of terminating an employee without good cause. In those situations, the employer simply argues that it was not required to have good cause to terminate the at-will employee.  In many cases they are right.  One court case from 1884 described the relationship from the employer’s perspective this way:

“All may dismiss their employees at will, be they many or few, for good cause, for no cause[,] or even for cause morally wrong, without being thereby guilty of legal wrong.”
Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at *6 (Sep. term 1884).

Modernly, some exceptions to the at-will employment doctrine have evolved that provide at least some protections for employees. However, it still operates primarily to benefit employers.

Contrast – Contracts for a Definite Term of Employment
Unlike an at-will employment contract, a contract of employment for a specified period of time, e.g. 2 years, ordinarily may be terminated only for good cause. However, even written contracts for a definite term of employment may be rendered “at-will” if they also contain a provision that either party can terminate the contract at any time, with or without good cause.


History of At-Will Employment

Unlike many areas of law that evolved from English common law, the doctrine of at-will employment is a uniquely American creation, and was developed in this country in the late 1800’s. Despite this doctrine’s often harsh results, it was not until the mid 1900’s when the first exceptions to this rule began to appear. Since then, several common law and statutory exceptions to at-will employment have evolved. In the majority of situations, however, the at-will doctrine continues to primarily benefit employers to the detriment employees. As of the date of this writing, all states except for Montana follow the at-will employment doctrine.

Exceptions to At-Will Employment Doctrine

(1) Anti Discrimination Statutes

Several anti-discrimination statutes have been enacted that protect at-will employees from being terminated, demoted or harassed because of certain types of discrimination, including discrimination based on age, race, color, religion, sex, national origin and a few other characteristics. An at-will employee who has been terminated for a discriminatory reason as set forth in those statutes, may proceed with a claim against the employer despite the fact that in most other situations the employer of an at-will employee can terminate that employee with or without cause.

Federal Statutes
One example of a federal anti-discrimination statute is Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against covered employees because of that employee's race, color, religion, sex or national origin. It should be noted, however, that Title VII only applies to employers who employee 15 or more employees. Some other examples of federal statutes that afford some protections to at-will employees are the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

State Statutes
Some states have passed their own anti-discrimination statutes, some of which provide greater protections than what is afforded under similar federal statutes.

(2) Public Policy

Most states in the U.S. recognize a public policy exception to the at-will employment doctrine. In those states, an at-will employee may bring a claim against an employer for wrongful termination if that employee was terminated in violation of a public policy. Some examples of public policy violations include reporting safety violations, reporting illegal conduct by the employer, either to a governmental agency, or internally, engaging in acts that public policy encourages, e.g. jury duty, or exercising a statutory right.

(3) Implied Contract

A majority, but not all U.S. states recognize the existence of an “implied contract not to terminate except for good cause” as an exception to the at-will employment doctrine. Under this exception, circumstantial evidence can be used to show that what started as an at-will employment, later evolved into an implied contract not to terminate the employee without just cause. Proving the terms of an implied contract is often difficult, and the burden of proof is on the fired employee.

Conclusion

Although there are several exceptions that provide at-will employees some degree of protection from an unjustified termination, it is important to remember that in many cases no such exception will exist, and the at-will employee will have no legal remedy if he or she has been unfairly terminated. 

Religious Discrimination: When to Call in Employment Law Solicitors

  
Jobs Employment, Career Job, Employment Job

By Jess Moss

In the UK, everyone has the legal right to be treated equally in the world of work regardless of their religious beliefs. However, there are occasions when religious beliefs are not respected and workers find themselves the victims of discrimination due to their religion. With the help of employment law solicitors, victims of discrimination on religious grounds can take legal action.

The Employment Equality (Religion or Belief) Regulations 2003 made it unlawful for an employer to discriminate against an employee or potential employee on the grounds of religious belief. This means that anyone who believes they have been the subject of direct or indirect discrimination, victimization or harassment due to their religion should take the advice of employment law solicitors to be sure of their rights.

The law covers such behavior as name calling on the grounds of religion, refusal to allow observance of religious practices or the wearing of sacred items or unfair dismissal. Furthermore, an employer cannot legally dismiss a job application on the basis of the applicant’s religion. The law is complex in this area and there are times when discrimination can be difficult to prove. It is for this reason that advisory organizations recommend taking the advice of employment law solicitors.

There are a number of resources which can help workers to understand their rights and the obligations of their employers in the eyes of the law, so that that they can ensure that their rights are being respected. The Citizens’ Advice Bureau is one such resource. Where a person suspects they have been victimized on the grounds of their religion, they should consult employment law solicitors as soon as possible to establish whether they have a case and how successful it is likely to be.

When and How Can You Give Polygraph Tests to Employees?

  
Jobs Employment, Career Job, Employment Job

by Rebecca Berlin

The Employee Polygraph Protection Act prevents most employers from giving polygraph tests to employees or potential employees as a basis for screening for promotion or employment. So when can you give polygraph test to employees?

In general an employer can only request that an employee submit to a polygraph test if it is part of an ongoing investigation involving economic loss or injury to the employer's business. This would include incidents of theft, embezzlement, misappropriation, and acts of unlawful industrial espionage or sabotage. In addition the employee must have had access to the property that is the subject of the investigation and the employer must have a reasonable suspicion that the employee was involved in the incident.

If an employer asks an employee to take a polygraph test as part of an ongoing investigation, the employer must comply with the requirements of the Employee Polygraph Protection Act regarding notice and information that must be provided to the employee, methods of testing and unacceptable questions, licensing and reporting of the examiner, and the use and disclosure of the results of the test.

The employer must provide the employee with a statement which sets forth the specific incident or activity being investigated including an identification of the specific economic loss or injury to the employer's business. The statement must also assert that the employee had access to the property that is the subject of the investigation as well as the basis for the employer's reasonable suspicion that the employee was involved in the incident being investigated. This statement must be signed by an authorized representative of the employer other than the polygraph examiner and must be retained by the employer for at least 3 years. The employer must also inform the employee of the date, time, location and conditions of the test including the instruments involved, whether the testing area contains a two-way mirror or camera, and whether any recording or monitoring devices will be used.

During the test the examiner may not ask questions that are intrusive or degrading to the employee. The examiner also may not ask any question concerning religious or political beliefs or affiliations, beliefs or opinions regarding racial matters, any matter relating to sexual behavior, and beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations. The employee must be permitted to stop the test at any time. Also the employer may not conduct the test if the employee provides evidence from a physician that he or she suffers from a condition or is undergoing treatment that might cause abnormal responses during the test.

The examiner must be qualified and licensed under applicable state laws and be bonded or insured. The examiner's report must also meet the specifications required in the Act.

The Employee Polygraph Protection Act is administered by the US Department of Labor, Employment job Standards Administration. Employers should consult with an attorney who practices in the area of Labor or jobs Employment Law regarding the specific requirements of the Act.

What is Employment Law?-1

  
Jobs Employment, Career Job, Employment Job

 http://www.alllaw.com

 

Discrimination-Discrimination takes place whenever someone is not given a job, promotion or raise based on the color of their skin, age, national origin, religion, or sex. When job performance and experience are not the sole criteria for career advancement, discrimination may have taken place. If you suspect your employer of discriminatory hiring practices, contact an employment job law attorney.

Whistleblowing-Whistleblowers are people who alert the authorities to the illegal or unethical practices of their employer. Oftentimes, whistleblowers lose their jobs or suffer other serious consequences for taking action against their employer. Such retaliatory action from an employer is generally prohibited in most cases of Whistleblowing. If you believe your employer is participating in illegal activity, it is important to speak with an employment law lawyer to make sure your rights are protected.

Wrongful Dismissal-Wrongful dismissal occurs when a person loses his or her job in a way that breaches the terms of his or her contract. This area of law can be tricky, so it is important to have an attorney on your side who understands employment law at both the state and federal level.

Workplace Safety-The Occupational Safety and Health Administration (OSHA) enforces workplace safety and health standards in businesses operating in the United States. When workplaces fail to comply with OSHA regulations and put employees at risk of undue harm, they may be held legally responsible for their willful or negligent disregard of the law.

What is Employment Law?

  
Jobs Employment, Career Job, Employment Job

 http://www.alllaw.com

 

employment law deals with the relationship between employers and employees. It covers a broad range of issues, including things like:

Wage and Hour-Employers are required to fairly compensate employees for time worked; this includes overtime pay for hourly employees who work over 40 hours in a week and providing wages that at least meet the minimum wage. If you have not received adequate pay for time worked, or have not received legally mandated time off for breaks, you may be able to take legal action against your employer.

Sexual Harassment-Employees have a right to work in an environment free from harassment. Sexual harassment can come in the form of sexual jokes or innuendos, unwanted sexual advances, inappropriate touching, and sexual favors in exchange for promotions or other job benefits. Employers must make sure they provide employees with a safe work environment. If you have been the victim of sexual harassment in the workplace by a superior or fellow employee, an employment law attorney can tell you what kind of legal recourse may be available to you.