A note of thanks to Julie Keeter, PHR for her guest blog entry on Terminations in the USA: Part 1 & 2 – Red, White and Grey?

Terminations in the USA: Part 1 – Red, White, and Grey?
By: Julie Keeter, PHR

I wish I could say that employment standards in the United States are far less ambiguous than those outlined in the Canadian Standards blog posting “Whole Lotta Gray” by Lisa Switzer. Unfortunately that simply would not be true. Employment rights in regards to terminations in the United States also do vary based upon the circumstances of each situation and can become quite complex so as Lisa so aptly reminded please consult with your employment attorney in regards to your specific circumstance.

That being said there are some basics I can share with you today. Starting with At-Will, ‘most’ employment in the US is considered “At-Will” this means that in the absence of a contract, employers (and employees) are free to terminate the employment relationship with or without notice or cause.  There are no severance requirements by law nor are there notice requirements per se (WARN Act could come into play in the case of a mass layoff or plant closing but I plan to keep this post basic if not simple – if you are planning on terminating 33% or more of your active workforce and you have a minimum of 100 employees total or more I highly suggest you get very familiar with your requirements under the WARN Act).

Now if I had a dollar for every time I’ve heard “but isn’t Michigan an At-Will’ State?, in regards to terminations I would be a wealthy woman and free to blog all day long, but sadly no, there is so much more consideration needed than simply recognizing a state as acknowledging At-Will employment. I always say that “At-Will” standards simply allows an employer to terminate employees that are in perfect standings with the company without ramification, and realistically how often would and employer want to terminate a perfect employee? That being said ‘wrongful termination’ is a very real concern for many US employers. 

When avoiding wrongful terminations from an employer’s perspective there are really four criteria to consider. I will attempt to briefly touch on areas to consider for each point but again your own unique situation cannot be answered by this brief summary so PLEASE consult your attorney before making employment decisions based on this information…Thank you.

Today I will discuss two of the four and finish the other two early January 2011:
1)      Specific statutory prohibitions
2)      Public policy

Okay so where was I…oh yeah laws prohibiting termination, most states have laws that outline exclusion to “At-Will” each is different so you need to know specifics about your state (yes, I know there are 50 of them and yes, again I’m referring to consulting an attorney) for instance most states will not allow terminations base on discriminatory reasons such as race, sex, religion or age (By the way ‘sex’ includes gender and sexual harassment).  There are also state laws that prevent termination for protected conduct like voting, “whistle blowing,” assisting public officials, serving on a jury, and so on. Please note I am simply presenting information from a state perspective as it relates to At-Will. Do not forget there are federal laws that apply such as Family Medical Leave Act (FMLA), American’s with Disabilities Act (ADA), Pregnancy Discrimination and others you will need to consider.

Public policy is slightly different from statutory.  The exclusion is based upon terminations that contradict an explicit, well-established public policy of the state. For example, in most states, an employer cannot terminate an employee for filing a workers’ compensation claim after being injured on the job, or for refusing to break the law at the request of the employer. The definition of public policy varies from state to state, but most states either narrowly limit the definition to clear statements in their constitution or statutes, or permit a broader definition that enables judges to infer or declare a state’s policy beyond the state’s constitution or statutes. It is in your best interest to know which applies to your state.

Stay tuned for early January, 2011 Part 2: Part 2: Red, White, and Grey?

What has your experience been with Specific Statutory Prohibitions or Public Policy (or both) and terminations? Have you found yourselves in some sticky situations? Sharing welcomed!