Homework answers / question archive / What is the critique of this article?  What is the authors' main point, and what evidence is used to support it, how does the termination of the employer-employee relationship create risk and legal issues, and how do exceptions to the employment-at-will doctrine factor into termination decisions?     Article   EXCEPTIONS TO (AND EROSION OF) THE AT-WILL DOCTRINE Notwithstanding the fact that most states have codified at-will employment relationships, certain employees' rights frequently protect against the implementation of the doctrine by employers

What is the critique of this article?  What is the authors' main point, and what evidence is used to support it, how does the termination of the employer-employee relationship create risk and legal issues, and how do exceptions to the employment-at-will doctrine factor into termination decisions?     Article   EXCEPTIONS TO (AND EROSION OF) THE AT-WILL DOCTRINE Notwithstanding the fact that most states have codified at-will employment relationships, certain employees' rights frequently protect against the implementation of the doctrine by employers

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What is the critique of this article?  What is the authors' main point, and what evidence is used to support it, how does the termination of the employer-employee relationship create risk and legal issues, and how do exceptions to the employment-at-will doctrine factor into termination decisions?

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EXCEPTIONS TO (AND EROSION OF) THE AT-WILL DOCTRINE Notwithstanding the fact that most states have codified at-will employment relationships, certain employees' rights frequently protect against the implementation of the doctrine by employers. Following are examples of legal exceptions and statutory restrictions relating to the atwill doctrine: Constructive Discharge An employee who apparently voluntarily quits may claim later that the termination was actually forced because of intolerable working conditions.4 The elements of constructive discharge include: (1) actions and conditions so intolerable or aggravated at the time of resignation that a reasonable person in the employee's position would have resigned, and (2) that the employer had actual or constructive knowledge of the intolerable actions and conditions and their impact upon the employee, and (3) the employer could have remedied the situation but did not. Terminating the Employee-Employer Relationship Vol. 31, No. 1, Summer 2005 52 Employee Relations Law Journal Terminating the Employee-Employer Relationship Statutory Restrictions Federal or state anti-discrimination statutes prohibit terminations of employees who belong to any one of several protected classes, e.g., race, color, religion, national origin, sex, age, disability, veteran or marital status, pregnancy. These anti-discrimination statutes preempt an employer's right to exercise the at-will doctrine.5 Public Policy State courts may apply a public policy exception. Even at-will employees cannot be terminated for an unlawful reason that violates public policy. An example would be where an employee refuses to commit perjury during testimony that would have protected the employer for wrongdoing. In Foley v. Interactive Data Corporation, the California Supreme Court held that "the employer's right to discharge an at-will employee is still subject to limits imposed by the public policy since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal."6 Employment Contracts The employment-at-will doctrine does not apply to jobs covered by contracts that state a specific employment period. In other words, an employment contract may override the doctrine. Employers need to avoid the creation of unintended contractual obligations to terminate only for cause. When an employee can establish an implied or oral (unwritten) contract, the employer may not utilize the employment-at-will doctrine to discharge the employee. Contracts may be implied from the indirect language in employee handbooks, policies, verbal presentations at new hire orientation, incomplete written offers of employment, and other factors in the workplace interpreted to require "for cause" termination. But even where an employer implements a procedure in which the employee signs an acknowledgment form to the effect that an employment contract cannot be implied and that an at-will employment relationship exists, some courts have still required proof of "just cause" for the termination by employers.7 Implied contracts may also exist as a right that an employee acquires based on the employer's actions without a written contract. A contract may be implied when the employee can reasonably assume, based on statements in company policy or communications, that involuntary termination of employment will not occur without cause. A concrete Employee Relations Law Journal 53 Vol. 31, No. 1, Summer 2005 example of an implied contract may be merit pay raises that are based on favorable performance evaluations but inconsistently applied. The use of a "probationary period" for new hires as a provision in an employment contract or as part of written company policy can also create problems for employers. Successful completion of a probationary period may be intended as the last step of the selection process. But it may also be misconstrued as a contractual guarantee of continued employment once the probationary period is over, unless the language is carefully crafted and communicated. For example, the policy or contract may include the following language: "successful completion of the probationary period may not, however, be interpreted as a guarantee to continued employment. Rather, employment is still intended to be an at-will relationship, as defined under California Labor Code section 2922 et al." Implied promises of continued employment except for cause may prevent the exercise of at-will termination.8 Collective Bargaining Agreements typically preclude at-will terminations and permit only for-cause terminations. And employees may not be punished or terminated on the basis of union membership. Such an adverse employment action would also constitute an unfair labor practice under various labor codes, for example, the National Labor Relations Act (NLRA).9 Section 7 of the NLRA gives most non-supervisory employees the right to form and join a union. The NLRA also permits unions to collectively bargain over "terms and conditions of employment." As a result, essentially, all union contracts do not allow employers to use the at-will doctrine. Further, Section 8(a)(1) makes it illegal for employers to interfere with, restrain, or coerce employees in their exercise of Section 7 rights, particularly with employer threats that imply loss of job. Disability Lacking provable business necessity, a fired disabled employee, may be protected from the application of the employment-at-will doctrine, particularly if the affected employee is able to perform the essential functions of the job after reasonable accommodation.10 The Americans with Disability Act (1990)11 and state statutes prohibit discrimination in employment activities, including involuntary terminations against people with a qualifying disability.12 Terminating the Employee-Employer Relationship Vol. 31, No. 1, Summer 2005 54 Employee Relations Law Journal Terminating the Employee-Employer Relationship Special Public Policy Exception: Retaliation and the Whistle Blower Many statutes prohibit termination or other adverse employment activities in retaliation against an employee for the exercise of a legal right. For example, Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful for an employer to retaliate against an employee who files a complaint with the Equal Employment Opportunity Commission. This prohibition applies whether or not discrimination actually occurred.13 Employees may not be terminated in retaliation for exercising a right or for engaging in a protected activity, such as "whistleblowing" to reveal to an appropriate regulatory agency an employer's illegal dumping of toxic waste material. California prohibits employers from preventing employee disclosures of their alleged illegal activity to appropriate governmental authorities.14 Examples of whistleblower statutes include the federal Whistle Blower Protection Act of 1989 for federal workers; parts of the Clean Air Act, Safe Drinking Water Act, Solid Waste Disposal Act, Federal Water Pollution Control Act, and the Occupational Safety and Health Act of 1970 (OSHA). Most of these statutes were enacted to address activities in industries with a propensity for employers to harm the environment. Provisions of these statutes prohibit employers from discharging or otherwise punishing employees in retaliation for disclosure to appropriate governmental agencies of the wrongful acts of their employer; however, these statutes exclude from protection the disclosure of hazards deliberately caused by an employee, as well as "frivolous" complaints. Activities of employees protected by statute against employer retaliation include disclosure of wages, serving on jury duty, military service, and maintaining the privacy of arrest records that do not lead to convictions.15 Employment Torts An employee who is terminated for an unlawful reason in violation of public policy may bring suit for wrongful termination, and the at-will doctrine would not apply. But making proper ethical decisions may actually help to minimize potential tortuous conduct and related lawsuits.16 Other employment torts that may give rise to wrongful termination claims by terminated employees include defamation (e.g., an unprivileged untrue communication, intentional or unintentional, causing harm to the reputation of another during the layoff determination process, based on performance evaluation records), interference with contractual Employee Relations Law Journal 55 Vol. 31, No. 1, Summer 2005 al relations (e.g., employer induces a prospective employee to break a confidentiality agreement), interference with economic benefit, invasion of privacy, and fraud (e.g., enticing a job applicant with false representations during recruitment efforts).17 Attempting to help employers overcome their fear of providing more than just the standard "date of hire—date of termination" in reply to reference requests, the majority of states have enacted reference immunity legislation. Although California does not have an employer reference immunity statute, California Civil Code Section 47 (c) allows privileged publications, which may give employers limited protection against defamation claims.18 These state laws are relevant because they may protect employers from defamation claims by former laid-off employees. The purpose of the privilege is to promote candid and open communication without the fear of being sued for defamation and other employment torts. Like the common law protection afforded by qualified privileges, these statutes protect employers unless it is proved that the privilege was abused because of lack of good faith, knowing falsity, recklessness, or malicious purpose.19