Firing An Employee Sometimes Backfires

 

Courts in at least 14 states have limited employers' rights to fire their employees. Some observers see this as additional evidence of the judiciary's growing, tendency to chip away at the rights of the employer.

Traditionally, employers have been barred from dismissing an employee on the basis of race, sex, religion, or union membership or activities, or because the employee missed work to serve on jury duty.

Now, however, the courts are relying on two legal theories to further define an employer's right to fire employees.The first theory states that when an employer's action has violated some principle of public policy, the employee cannot be fired.

In accordance with this theory, some courts have held it illegal to dismiss an employee for such activities as filing a worker's compensation claim, refusing to take a lie detector test, refusing to manipulate data in official air pollution reports, and complaining that an employer had overcharged customers who prepaid their installment loans.

The second theory says that an employer violates an "implied contract" when he fires an employee except for just cause. A California court, ruling on the dismissal of a candy manufacturer's employee who had worked his way up from dishwasher to vice-president, specified certain facts which, when combined, create an "implied contract." These include the length of the worker's employment, the commendations and promotions he received, and the apparent lack of any direct criticism of his work.

Although most of the termination battles are being fought in court, New Jersey and Michigan are considering statutes that would prohibit an employer from firing an employee without "documented justifiable cause."

The 14 states known to limit employers' rights are Arizona, California, Illinois, Indiana, Kentucky, Massachusetts, Michigan, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, Washington, and West Virginia.