KUUKAJVL: LA1:3UK AINU tlMrLU I MiiiN i IN THE THEATRE Wednesday, February 24, 9:30 a.m. By Richard J. Simmons HISTORICALLY. EMPLOYERS HAVE enjoyed enormous freedoms to discipline or discharge employees as they deemed appropriate, restricted only by a handful of civil rights and public policy statutes and, in some cases, selfcreated contractual obligations. Within the first three months after entering the human resources field, however, those with personnel responsibilities realize that employer freedoms have become attenuated as a result of the serious erosion of the termmation-at-will doctrine. Indeed the halls of our courts are witness to the agony of those who have relied on their ability to terminate at will and who have thus failed to take necessary steps to demonstrate that their personnel decisions were both (1) motivated by legitimate considerations, atid (2) administered fairly and in good faith. In the short space available, it is not possible to provide a comprehensive examination of the web of judicially-established theories that have evolved to restrict employer freedoms in this area. Instead, this article has three objectives: ) to identify some of the shortcomings ( 1 of employer actions that have culminated in significant liabilities in discharge cases, (2) to address some of the measures that employers can adopt to safeguard their interests in connection with the administration of disciplinary actions, and (3) to identify some factors that courts have recognized as enhancing employer arguments that an employment-at-will standard is still applicable. In each of these areas, it must be stressed that the human resources function will play an increasingly important role in protecting employers against enormous liabilities. Hopefully, it will not take a multi-million dollar lawsuit to attract management's attention to the importance of this function. The Nature Of The At-Will Relationship And Its Erosion Despite recent judicial pronouncements and a large outpouring of employer concern, employment relationships in most states are—or are capable of becoming— terminable at will. Recent court decisions have simply recognized a number of exceptions to the general circumstances under which employers can safely rely upon the application of the termination-at-will doctrine. Many state laws provide that an employment relationship that is not for a specified period of time is terminable at the will of the employer or the employee. Employers have historically construed these laws to mean that they could fire employees for a good or a bad reason, or for no reason at all. It was necessary only that the termination not transgress any law, such as a civil rights statute, or violate any public policy. Illustrations of Problem Areas There are many reasons why employers have lost wrongful discharge cases in recent years. There are, for instance, obvious problem cases where employers have asked employees to engage in unlawful or unconscionable acts and have terminated employees for refusing to comply with their demands to do so. These cases perhaps have the greatest jury appeal. Other cases that have culminated in employer liability involve far more subtle violations or offenses of employee rights. These cases are illustrated by terminations that have resulted from inappropriate or suspect motives of supervisors, poor investigations, or actions that simply do not make sense, such as firing a long-tenn employee for mere suspicions or discharging an employee for violating a minor rule that other employees have transgressed without repercussion. Although each wrongful tennination case is as unique as a fingerprint, there are generic problems to many cases that can often be averted. In the author's experience, one of the principal causes for wrongful termination cases is a cavalier and almost wreckless attitude of employers who feel that power and authority are justifications for whatever actions that they take. It therefore must be stressed that the power and authority to discipline or fire an employee bear absolutely no relationship to an employer's ability to justify such a decision to a judge, administrative agency, or jury as many as five years after it occurs. A second glaring error is often committed by employers who wish to comply with their legal and moral obligations but who fail to do what is necessary to demonstrate patience and reasonableness when administering discipline. It is not uncommon, for example, for employers to hasten to terminate an employee only to deal with the problems engendered by the tennination for years to come. By exercising patience and the willingness to provide a long-term employee a reasonable time to identify and improve performance to an acceptable level, where feasible, many employers could avoid spending time in the court room. Patience is truly a virtue in the defense of wrongful termination cases. Another area of increasing dithculty surfaces in connection with the manner in which disciplinary actions are carried out. This is illustrated in cases where employers are justified in tenninating an employee but administer the discharge in an entirely unreasonable and inappropriate manner. For instance, the ability to fire an employee for legitimate reasons does not create a right to humiliate or defame the employee, to invade one's privacy, or purposely to inflict emotional distress. Finally, employers sometimes lose cases where they are right in their hearts and actions, yet they are unable to demonstrate that they acted in a fair and reasonable manner due to the absence of sound personnel practices, such as properly designed and administered progressive discipline, termination, and documentation procedures. It is important to emphasize that it is not mere documentation but good documeritation that will assist employers to win termination cases. It is therefore incumbent on an employer's human resources professionals to educate and train supervisors. The fact that supervisors, personnel officials, and other management representatives may iac& personal liability will provide a useful tool in gaining everyone's attention. Impetus For Wrongful Discharge Cases As an attorney, the author feels comfortable in acknowledging that one factor has predominated over all others in providing the impetus for the increase in wrongful termination cases. That factor is the availability of a tort theory of recovery and the employees' potential ability to recover punitive and exemplary damages against their former employers. The advent of the punitive damage remedy in the employment area has provided an incentive for employees to pursue actions against their former employers and for attorneys to accept such cases on a contingency fee basis. The willingness of juries to play Monday-moming-c|uarterback with employer decisions and to award multi-million dollar judgements to employees whose actual losses, if any, are a tiny fraction of those awards has stin'ed the wrongful termination fire even more. Moreover, candor dictates that the author disclose that employers are the only real victims of the wrongful termination theory. Attorneys representing employees and employers both benefit from the theory, as do employees themselves. In fact, it can be argued that it is more lucrative to be imemployed in California than to be employed. In some cases, this is imdoubtedly true. Nevertheless, the economic realities and incentives in the area suggest that a legislative soUilion m.iy be but a distant goal. (continued) SW-16 BOXOKUCE
Movie Theater Operators... Increase Transaction Profits At 1fouR Concession Stand WithM&M/Mars FREE Triple Feature Promotion _c 1987 Of Man, Incorporated Hactonslown Naw
Change language