Employment at Will is defined as a relationship that is terminable by either party for any
reason or no reason at all, without any advance notice whatsoever. While this concept
appears to be an opportunity for the employer to discharge an employee at any time
without any recourse, this is actually one of the greatest myths in the human resource arena.
The concept of the ability of employers to terminate employees whenever they wish, for
any reason, has slowly been eroded by both state and federal legislatures and courts ever
since it was defined. There are numerous pitfalls that await the unwary employer who
operates under the delusion that employees can be terminated without any thought or
concern of recourse by the employee.
Following are some of the areas employers must be conscientious about in considering
termination of an employee:
Family Medical Leave Act
It is unlawful to discharge any employee who is involved in a proceeding concerning the
Family Medical Leave Act (FMLA), or to deny an employee Family Leave time by
discharging or threatening to discharge an employee. The FMLA has been expanded in
Massachusetts, which enacted the Small Necessities Leave Act (SNLA) which allows
parents to exercise 24 hours of leave within a 12-month period to attend school functions,
routine medical or dental appointments for themselves or a child, or to accompany an
elderly relative to medical or dental visits or for general elder care.
So, for example, if an employer terminates an employee because she has missed a few
hours of work on several occasions for her child's pediatric check-ups and for visiting a
prospective nursing home for her mother, that employee could then sue the employer for
failing to comply with the SNLA.
Learn more about the FMLA on the US Department of Labor site.
Learn more about the SNLA on the Massachusetts Trial Court Law Libraries site.
Maternity Leave Act
The Maternity Leave Act requires an employer to maintain the same or similar position
for an employee who takes pregnancy leave, and this has been expanded in
Massachusetts by statute so that an employee may be entitled to her same position if she
requires combined medical leave and maternity leave of 20 weeks. So, while the
employee may have the right to determine that after about five months' absence from the
workplace she does not wish to return to work, the employer has an obligation to
maintain this position, or a similar one, for the employee for the duration of the leave.
Learn more about the MLA on the Commonwealth of Massachusetts government site.
Americans with Disabilities Act
It is unlawful to terminate an employee who qualifies as disabled under the meaning of
the Americans with Disabilities Act if as an employer you could make an accommodation
to the employee's job which would allow the employee to perform the job.
Whether a requested accommodation is reasonable varies depending on the nature of the
request and how it affects the employer. For example, on one occasion it was considered
a reasonable accommodation for a larger employer to install a wheelchair ramp for an
employee who developed muscular dystrophy. Requiring a smoke-free workplace has
also been determined to be a reasonable accommodation in a private workplace when an
employee developed emphysema. Alternatively, examples of unreasonable
accommodations requested may involve such things as a request by a newly arthritic
delivery person to alter his job so that he is not required to lift anything more than a
letter. Or, it may be considered unreasonable for an employee with significant
responsibility to request that her job description be entirely modified to remove certain
responsibilities to accommodate her need for a "stress-free" environment due to an anxiety disorder.
Find a comprehensive list of ADA links at the federal government's Disability Info site.
Sexual harassment
Termination of an employee who has raised claims of sexual harassment, or alleged that
they were discriminated against during their employment solely because of their
membership in a protected class, may result in very costly additional claims of retaliation
that may hold the employer liable for past and future lost wages for the discharged
employee. What can be critical in situations where sexual harassment is alleged is for the
employer to conduct a prompt investigation, and to take swift action that protects an
employee who has been the victim of sexual harassment.
I recently handled a case where the employee had been the recipient of unwanted
attention from her supervisor, and the employer did not appropriately address the
situation when it came to light. In this case, after the employee complained about sexual
harassment, which had gone on for months, the employer initially did the right thing by
conducting an immediate investigation. However, at the end of the investigation,
although the employee's claims of harassment were documented (in the form of greeting
cards), the employee was forced to continue to work in an extremely small work area
with the supervisor who had harassed her. The only action that the employer required
was that the supervisor "apologize" in the office, and the human resource director
indicated that the supervisor's behavior would be scrutinized more closely in the future.
Thereafter, the employee was subjected not only to additional sexual harassment, but
significant retaliation by the supervisor as well. Ultimately, this case resulted in a
substantial settlement for the employee.
Of course, many matters are out of the hands of HR professionals, and you are only
called in for damage control. However, HR professionals, in their role as trainers, would
be wise to heed the advice of the EEOC: "Prevention is the best tool for the elimination
of sexual harassment. An employer should take all steps necessary to prevent sexual
harassment from occurring, such as affirmatively raising the subject, expressing strong
disapproval, developing appropriate sanctions, informing employees of their right to raise
and how to raise the issue of harassment under Title VII, and developing methods to
sensitize all concerned."
Find an overview of workplace issues around sexual harrassment at the federal government's EEOC site, or read a detailed description of the
EEOC's guidelines at the federal government GPO (General Printing Office) site.
Union employees
Discharge of an employee who is engaged in attempting to solicit entry of a union into
the workplace can have dire consequences. Do your due diligence -- check the status of
any employee who is being considered for termination in regards to union membership.
Discipline procedures
Your employment manual may be considered a legal binding contract. Termination of
employees at will without abiding by discipline procedures or evaluation processes which
are set forth in the company's employment manual may result in legitimate claims by an
employee that the employment manual constituted a contract which was breached by the
failure to follow procedures outlined therein. Similar "breach of contract" claims have
been upheld with regard to offer of employment letters, which courts have later construed
to create a contract.
In summary, oftentimes an "Employee at Will" may not be terminable "at will" as the
concept implies. It is the HR professional's responsibility to understand the myths and
realities of "Employment at Will", to become very familiar with employment law and its
application, to keep up with changing legislation, and, of course, to ensure that you have
the policies, procedures, and processes in place so that your company does not find itself
in an ugly, and unnecessary, legal battle.
Denise L. Page, Esq is vice president and shareholder of Barron & Stadfeld, P.C., a
Boston-based full-service law firm. She is also a NEHRA member. Denise can be
reached at dlp@barronstad.com.
