Weekly HR News - Employment At-Will
Weekly HR News – Employment At-Will
Employment at-will basically means that an employer can discharge an employee for good cause, for no cause, or for a cause that some might view as unethical. Over the years however, numerous exceptions have been carved into this general rule. These exceptions can be contractual, statutory or common law in nature. Below is a brief summary of these exceptions.
The employment at-will arrangement can be altered generally by express written contract between the employer and the employee, by providing that the employee will remain employed for a specified term or that their employment will only be terminated for “good cause”. Some examples of express contracts include individual employment agreements or collective bargaining agreements containing provisions which clearly state the intent to modify the employee's at-will status.
In addition, “at-will” can be altered by an implied contract, which is created when the intent to change a person's at-will status can be inferred from the circumstances surrounding that person's employment. This can sometimes lead to a result contrary to what was actually intended by the employer. A poorly drafted employee handbook which makes "feel good" statements about the employment, and/or fails to state that it does not affect an employee's at-will status, is an example of a document which can rise to the level of an implied contract of employment.
In addition to contracts, the Kentucky courts have recognized a common law exception to employment at-will which gives rise to a cause of action for "wrongful discharge." This theory is based on the notion that employers should not be allowed to terminate an employee at-will where the basis for the termination violates public policy. In the case of Grzyb v. Evans, the Court listed three situations in which the termination of an employee would violate public policy:
- The termination is in response to an employee's exercise of a legal right. For example, termination because of the use of legally required FMLA;
- The termination results from the employee's refusal to perform an illegal act. For example the employee refuses to work off the clock when requested by management to do so; or
- The termination results from the employee's performance of an important public obligation established by law. For example, being terminated for reporting a violation of sexual harassment.
Essentially, the claim of wrongful discharge is designed to prevent an employer from using the threat of termination as a means to coerce an employee into action contrary to law.
Lastly, there are numerous state and federal statutes which protect employees from unfair employment practices. Generally speaking, many of these statutes are designed to prevent unfair treatment of persons based on factors which have no relation to their ability to perform a job such as race, religion, gender, age and national origin. Others are designed to further public policy by protecting an employee's ability to exercise his legal rights, ensuring that an employee has a safe place to work or giving job protection to those who are disabled, pregnant or temporarily unable to perform the essential functions of their job. Any statute which requires an employer to act or refrain from acting in a particular manner when dealing with its employees modifies the employment at-will status. In addition to state and federal laws, local governments may enact ordinances which protect employees from unfair employment practices such as based on a person’s marital or sexual status.
As you can see from the many exceptions to the “at-will” status, cities as employers, must be careful when terminating an employee. At no time should an employee be terminated without consulting with your city attorney. And as always, if a city attorney needs assistance they can contact the KLC Legal Department.
For more information on this discipline or any other personnel related matters contact Andrea Shindlebower.