But when we honestly study our own lives, we can clearly isolate various episodes of how this tendency [the compulsion each of us has to be the most significant and the most important] manifests itself in our personality, either covertly or explicitly. The events can range from simple conversations on which football team is the best to intense debates in boardrooms on the next important decision for the organization. What’s worse is that the ego blinds us from seeing its own ploy, the ultimate of which is rationalized excuses for avoiding honest introspection and admittance.
Monthly Archives: September 2010
This post describes the doctrine of “employment at will,” and exceptions to the doctrine. (Please note this post does not provide legal advice, and that different locations/States and their laws vary in how employment-at-will is interpreted).
Meaning of Employment at Will
Employment at will, as described in Wisconsin law, means an employer may fire an employee “for good cause, for no cause, or even for cause morally wrong, without (the employer) being thereby guilty of legal wrong.” Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 567 (WI SC 1983).
Most States in the U.S. are at-will States, with Montana — which requires terminations be for “cause”– being the notable exception.
When employment is at-will, a job termination is usually legal, including most terminations that are done for bad or unfair reasons.
Exceptions to Employment at Will
There are notable exceptions to employment-at-will: subsets (minorities) of unfair reasons for termination that are both unfair and illegal, and thus could give rise to legal claims. I lump the exceptions into three categories.
(1) Contract: If an employee has a contract with the employer, that contract may require legitimate “cause” for a job termination to occur. For example, it is common for union-employer contracts (collective bargaining agreements) to define “cause” in specific terms that say an employee cannot be fired unless he or she has specific types of performance or conduct problems. These contractual terms modify employment from employment at will into for-cause. If the employer fires the employee without showing it was for “cause” as defined in the contract, then the termination could give rise to a legal action.
(2) Discrimination: Discrimination laws (and similar laws, like FMLA law or certain States’ anti-bullying laws) provide that an employer cannot fire an employee based on certain types of characteristics: race, religion, age, sex, disability, the fact the employee took a protected medical leave, etc. Depending where you live, there are usually two, and sometimes more, bodies of discrimination laws that apply to you. Federal discrimination law has its own laundry-list of protected characteristics for which an employer cannot discriminate against you, harass you or terminate your employment. States have their own laundry lists (see Wisconsin’s, for example) which often duplicate, and add additional protected classes to, the Federal list. While the laundry lists are long, they do NOT pertain to most of the “bad” reasons for which employers fire employees. For example, an unfair personality conflict, or unfair performance expectations, are not discriminatory unless they were motivated by discrimination based on a protected characteristic (e.g. disability). It is common for fired employees to feel “discriminated” against, before they are aware of what discrimination truly is, and what the protected classes are.
(3) Whistle-blowing: I use the term “whistle-blowing” loosely, to refer to situations where it is unlawful for an employer to fire an employee because the employee complained (or “blew the whistle”) about illegal conduct by the employer. There are diverse statutes and laws that apply to specific forms of employee whistle-blowing/complaints: complaints about wage law violations, complaints about discrimination, complaints about defrauding the government, etc. There are also more global, catch-all legal claims (e.g. wrongful discharge law) that could encompass a range of whistle-blowing activities. Without going into detail, the bottom line is this: if an employee is fired in retaliation for complaining about illegal conduct by the employer, a whistleblower-type legal claim may exist, and the termination could be challenged in a legal proceeding. Whistle-blowing, like discrimination and contractual rights, is another type of exception to employment-at-will.
If a woman could sue McDonald’s for spilling coffee on herself, was there any limit to what the courts might be forced to rule upon? But as [this documentary] shows, the punchlines and misinformation put forward by so-called tort “reformers” didn’t begin to tell the story of Stella Liebeck. The facts are that McDonald’s brewed its coffee at 180 degrees, a temperature hot enough to seriously burn anyone who might spill it on themselves. In fact, Liebeck’s injuries were so serious she required skin grafts. And she wasn’t the first person burned by McDonald’s hot coffee — at least 700 others had reported injuries after mishaps with the chain’s coffee.
In other articles, I’ve discussed things that all employees should keep in mind when it comes to potential job loss, job loss and severance. These include articles such as those here: Problems at the Job (archive) and Things to Consider When Your Employer Offers a Severance Agreement.
If you are an executive or professional, there are some considerations you should particularly take into account.
Have You Thought About Investments (With or Without an Attorney) Required for Your Potential Legal Matter?
If you are an individual thinking about pursuing a legal matter– and you are like most people– you probably haven’t given thorough thought to the investments required for that type of legal matter.
Investments are not just money, but also time and emotion.
Sometimes, people proceed without an attorney, and are surprised to learn later than an attorney would have represented them on a contingency (pay-only-if-you-win) basis, or at a fee far less than what was envisioned.
Some people proceed without an attorney, and are surprised to learn there are investments of time and money (aside from attorney fees) that they did not anticipate or estimate accurately.
Sometimes the investments that play out for a legal matter turn out to be far more, or far less, than what an individual had expected.
For example, individuals who pursue a discrimination complaint without a lawyer are often surprised to learn the process can take years, and that significant fees (other than attorney fees) can come up, like deposition fees, as the matter progresses.
If you start a lengthy legal process before talking to a lawyer– e.g. say you file a discrimination complaint, and don’t talk to a lawyer until a year into the legal process– you may learn that you made significant investments that were not appropriate. For example, when an attorney works for an employee on a discrimination complaint, it is common for the attorney to exceed 100-200 hours on that matter until the point of a legal determination. If the employee proceeded on her own and did, say, 150 hours of work, then the value of that work– if paid at only the minimum wage of $7.25 per hour– would be $1,087.50. Even if it seems proceeding on a matter without an attorney will not be costly, the value of unanticipated work, and the value of real out-of-pocket expenses, can make the real-world investments greater than what you may have envisioned.
One way an attorney can provide a great deal of value– often for a few hundred dollars or less, and sometimes for free– is at initial consultation. That is, when an attorney evaluates your potential legal matter before you begin it. If you cannot consult with an affordable attorney, then you should try to seek out another knowledgeable source– say, a representative within the legal system (e.g. a discrimination agency representative)– to ask basic questions such as how long a matter like yours takes on average, what statistics exist about how cases are resolved, and for any required investments that that person may know of.
In many instances, the investments are worth it. But you have no way of knowing that in advance, unless you get comprehensive information about what your likely investments will be, with and without a lawyer.