You're Fired! Pitfalls in the Firing of an Employee

About a week ago, I was having a conversation with a senior executive at Jackson-Hewitt Tax Service, where I am employed as a part-time seasonal tax preparer. This conversation was in the context of an interview to consider my seeking a position in Management. I was asked how I "knew" when it was appropriate or necessary to discharge an employee. I replied in an almost casual, and certainly facile, manner by suggesting that the decision was "intuitive".

I did not clarify that the "intuition" was the distillation of years in the private practice of law and nearly 25 years with a state agency in Florida. Upon reflection, I believe the issue of employment discharge is worthy of a closer examination.

One must begin with a general rule, and then probe and explain the exceptions; there are always exceptions!

The vast majority of employees in the United States are "at will", that is they may be fired without notice at any time and for any reason deemed sufficient by the employer, even if it is a wholly irrational reason. This ability to discharge an employee, however, can be and is limited by a number of issues and matters.

First, the discharge of the employee may be limited by contractual rights; the employer and employee may have entered into a contract of employment which may not necessarily be in writing. The more common written contract may be a formal document specifying the possible justification for any ultimate discharge, the advance notice that may be required, terms as to severance compensation, restrictions on competition by the former employee after termination, and the like. Even these straight-forward and seemingly clear terms are subject to a test of reasonableness; for example a non-competition clause will normally be enforced only for a limited period of time and geographic area.

A contract need not be a formal executed document. If an employer has a set of written comprehensive personnel rules, say in a booklet or pamphlet, and the employee is given the material or if he or she is made aware of the policies, the employer, as well as the employee, may well be bound by them.

In most states (but not Florida) employees may be compelled to join a union. Normally, union contracts provide for conditions precedent before a discharge and severely limit those conditions and reasons.

Finally, employment relationship may be subject to state, local or federal statutes or ordinances. Commonly, employees of the federal or state governments or local entities are subject to civil service, or career service, laws and regulations which limit the reasons for discharge or provide for specific kinds of disciplinary action short of discharge.

An employer, moreover, depending on the size of the company and the number of employees, must follow federal, state, and, often local, laws and ordinances that prevent hiring or firing, or other employment related actions, that are considered against public policy.

[Nothing in this article should take the place of specific advice from an experienced and competent employment rights attorney; each general statement that I make has a plethora of exceptions, limitations and nuances that may change the situation with regard to a specific individual or situation.]

The most well-known federal statute is Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against applicants and employees on the basis of race or color, religion, sex, and national origin. It also prohibits employers from retaliating against an applicant or employee who asserts his or her rights under the law. Title VII prohibits discrimination in all terms, conditions, and privileges of employment, including hiring, firing, compensation, benefits, job assignments, promotions, and discipline.

Sounds simple and without wiggle-room. Correct? Some issues are just now coming before the courts and will give attorneys substantial compensation over the next several years. In the absence of a statute preventing it specifically, may an employee be fired simply because he (or she) is trans-sexual? What if a man is insufficiently masculine-looking; how about a woman who is thought of as being lacking in feminine appearance? How about a college sorority that discriminated against a lady who, in someone's mind, was not sufficiently "pretty? How about a waitress whose uniform consists of a tight T-Shirt and short-shorts who gains considerable weight and no longer is "attractive". May she be fired? What if she becomes pregnant? Thus far these are all actual controversies that have been adjudicated by at least one or two lower courts and the results are not wholly consistent.

Some interesting case law has arisen regarding the imposition of "dress codes" which often are more limiting and exhaustive with regard to women as to men. In a recent case involving Harrah's casino, the United States Court of Appeals for the Ninth Circuit approved a dress code that directed men to be "well and neatly groomed", their nails to be clean and clipped and present a generally clean appearance. Women, on the other hand, had to "tease" their hair, wear nail polish, and use make-up (face powder, blush and mascara and lipstick). One female employee, who did not wear make up when off duty refused to wear it while working, was discharged and the firing was upheld.

Other "dress code" cases that are now being in the lower courts involve which code would apply to a homosexual, lesbian or trans-sexual person. Stay tuned for these new areas of legal and employer concern.

The Age Discrimination in Employment Act prohibits discrimination based on age against employees who are at least 40 years old.

This law prohibits age discrimination in all terms and conditions of employment, including hiring, firing, compensation, job assignments, shift assignments, discipline, and promotions.

The Americans With Disabilities Act prohibits employers from discriminating against people with disabilities in any aspect of employment, including applications, interviews, testing, hiring, job assignments, evaluations, compensation, leave, benefits, discipline, training, promotions, medical exams, layoffs, and firing.

The ADA protects not only applicants and employees with disabilities; it also protects those who have a history of disability and those who are perceived -- incorrectly -- as having a disability. For example, an employee who had been diagnosed with cancer and in remission for many years may not have a current disability, but his employer is still prohibited from making job-related decisions based on the employee's former disability. Similarly, an employee who walks with a limp may not have a disability, but an employer who makes job-related decisions based on the mistaken belief that the employee is disabled may be in litigation Hell.

In all of the laws involving "protected classes", an employer cannot fire a person who asserts protection or who complains about a violation of the specific law.

It can be seen that there are many prohibitions against the unjustified or prejudicial discharge of an employee. There is a real practical reason for using discharge as the last possible resort. A company spends money and time, the latter being another form of money, to recruit, hire and train an employee. Discharge not only wastes that investment but requires an additional expense in hiring and training the replacement.

Future articles in this series will discuss sexual harassment and the workplace, the accommodation for religious practices, the accommodation for those with disabilities and other areas that I find interesting!

But I have to repeat, if you are faced with a specific issue or problem, discuss it with an experienced attorney.