Employment Law Bits

Employment-at-Will - what is it and what does it mean to you?

This post is the first in a 4-part series.

The majority of employees in the United States are employed without a written employment contract, which is also known as being employed-at-will. While most employees know that they can quit at any time, what they do not know is that their employer can also fire them at anytime, without any legal recourse for the employee.

In an at-will employment relationship, either party may terminate the employment without the risk of liability for doing so. Employees can quit without providing a reason and employers can fire an employee for good cause, bad cause, or for no cause at all. Although it is common courtesy for an employee to give two weeks’ notice prior to leaving a job, it is not legally required. The at-will employment doctrine is based on the idea that individuals should have the freedom to choose where they work and be able to work free from restraint.

That is not to say that employees never have any legal remedy for being terminated. There are several protections for employees who are fired because of discrimination or are retaliated against for reporting an employer’s unlawful activity. Additionally, there are several exceptions to the employment-at-will doctrine that can result in liability for the employer. The three main exceptions are: the public-policy exception, the implied-contract exception, and the covenant-of-good-faith exception.

Information on these employee protections and exceptions will be discussed in upcoming blog posts.

The U.S. Supreme Court revisits maternity leave: AT&T Corp. vs Hulteen

In 1978, Congress passed an amendment to Title VII, known as the “Pregnancy Discrimination Act” (“PDA”,) making it illegal for an employer to discriminate against an employee because of a pregnancy. The PDA went into effect in 1979 and influenced various corporations to adjust personnel policies. AT&T, for example, changed its policy to calculate service credit for maternity leave in the same way the other kinds of leave were calculated. However, AT&T did not retroactively enforce the change of its personnel policy to the service credit of women who had gone on maternity leave pre-PDA.

In AT&T Corp. v. Hulteen, four female AT&T employees sued the company, alleging their pre-PDA credit should be recalculated according to the post-PDA policy, which would entitle them to greater pension benefits. All four employees took pregnancy leave between 1968 and 1976. On May 18, 2009, the United States Supreme Court reversed the lower court holding in favor of the employees, holding the PDA did not require retroactive application.

The Court held that an employer does not necessarily violate the PDA if it applies a seniority system that was in effect pre-PDA to pregnancy leaves taken prior to 1979, even if that system would violate the PDA if enacted today. The Court explained that seniority systems are afforded special treatment under the law. However, there must be no evidence that the pre-PDA system was enacted with the intent to discriminate. The Court found no evidence of discriminatory intent by AT&T.

This holding is significant because if the Court had ruled for the employees, women who took maternity leave pre-PDA, and are leaving their employment soon ,would be entitled to greater pension benefits. Although this can be considered a victory for employers, they should still consult with legal counsel when giving current effect to pre-PDA policies that differentiate pregnancy leave from other types of leave.

Female workplace bullying: dealing with school antics at work

Bullying is not a new phenomenon. It is almost expected among children and teenagers. However, many would be surprised to learn how widespread bullying is in the workforce. Of those who are not surprised, many would likely assume that the role of the bully is played by a male supervisor. However, a recent survey conducted by the Workplace Bullying Institute reveals that approximately forty percent of bullies are women. Moreover, women are the targets of bullies fifty-seven percent of the time.

A recent article in the New York Times, entitled “Backlash: Women Bullying Women at Work,” focused on the rise of women bullying other women at work. The article indicates that while male bullies often target men and women alike, women are more likely to bully female colleagues than their male counterparts. Moreover, the bully is often someone in a position of power. Furthermore, whereas men are more obvious with their bullying tactics, female bullies are more likely to be covert. The article also suggests that the increase in women bullies is correlated with their on-going struggle with the glass ceiling. Many women feel they must give off a “tough as nails” vibe to get, and stay, ahead.

Employers beware: if a supervisor, male or female, unleashes an unequal amount of aggression on female employees, the employer may be held liable for sex-based harassment or sex discrimination. Therefore, employers in general and supervisors in particular should refrain from questionable conduct that might be taken as harassing or discriminatory.

Employment-related defamation claims on the rise?

As a result of a recent court decision, employers could be facing increased numbers of defamation claims filed by discharged employees. Using a definition of “actual malice” from the case, the court held that even truthful statements may give rise to a libel claim if the plaintiff can prove malicious intent on the part of the speaker.

After an employee of a company was terminated, the executive vice president sent an email to all employees, approximately 1,500 people, informing them that the employee had been fired and giving the reasons for his termination, advising the recipients to consult human resources if they had questions about the tasks that he had previously performed.

The former employee filed suit against the company, alleging among other things, that the email sent by the executive vice president constituted libel. The court concluded that because the legislature had passed the libel statute in 1902, the definition of “actual malice” used during that time period should be the meaning applied to evaluate the libel claim in 2009. The court found that the proper definition to apply was “ill will” or “malevolent intent.”

Although a jury has yet to hear this issue, the ramifications of this decision could be significant for employers. With the current state of the economy and the resulting layoffs, employers may be susceptible to defamation suits, even if the statements made about former employees are true. This can be especially problematic in situations involving negative job references to prospective employers. Given the potential for liability, employers are urged to contact an employment attorney to ensure adequate compliance.

Mandatory paid sick leave: a fight on two fronts

Currently, less than half of private sector employees enjoy the benefit of paid sick leave. Look for that to soon change. Reformers at both the state and federal level have recently taken steps to make this employment perk mandatory for many workers. In Congress, Representative Rosa DeLauro (D-CT) and Senator Edward Kennedy (D-MA) have introduced in their respective Houses a bill that would require employers with more than 15 employees to provide workers one hour of sick leave for every 30 hours worked, up to 7 days a year. Proponents of the bill point to the fact that for many people, working when sick is a better option than staying home and missing a day’s pay. This often leads to the spread of that sickness in the workplace, causing a greater drop in productivity than if the original sick worker had just stayed home for a day or two. The bill’s opponents argue that those companies that are not offering paid sick leave, especially the smaller ones, simply cannot afford to create incentives for employees not to work by giving days of free pay. The suggestion is that, for these companies, an employee working at 70% is better than an employee not working at all. Closer to home, the Massachusetts Paid Leave Coalition is lobbying legislators in Boston to pass a similar law in the Bay State. The coalition, made up of various workers’ unions, has emphasized that fact that, because of the swine flu scare, employees are being asked to stay home if they feel unwell. The coalition’s position is that workers should not feel torn between sacrificing 1/5 of their paycheck and putting their co-workers at risk. For those who would be affected by mandatory sick leave legislation, keep an eye out, because a change may be coming soon.