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Righting a wrong; Employees should know what few rights they have when fired

By Emily Hughey Quinn, Source: Tribune Media Services

While we all study up on how to land a job, it’s rare we know our rights when we lose it. Nobody ever thinks they’re going to get fired. To make matters worse, the reality is that the moment of termination, U.S. employees are actually entitled to a lot less you might think.

“‘Employee rights’ is something of an oxymoron for American employees, who have no rights at all when they’re released from the workplace unless they believe that they were fired for discriminatory reasons,” says Jack Tuckner, partner of New York’s women’s-rights-in-the-workplace law firm, Tuckner, Sipser, Weinstock & Sipser, LLP. “As a general rule under both federal law as well as the laws of virtually every state, an employee can be fired at any time, for any reason, or for no reason at all.”

Straight talk about employee rights

The United States generally operates on an “employment-at-will” principle, which means employment can be terminated by the employee or the employer at any time for any reason or no reason at all. As such, nothing is guaranteed to a departing employee.

Take, for example, the severance pay most people assume is guaranteed in a firing: Myth. Absent company policy or a signed employment contract that includes one, severance packages are arbitrary and depend on whether the company feels like easing your financial transition into joblessness.

And what about the laid-off employee who feels he’s been released unfairly and wonders if litigation is the way to go?

“There is no federal law precluding ‘wrongful discharge’ or an ‘unjust firing,’ ” Tuckner says. “The only right, leverage or ‘theme’ that an employee has in relation to his employer, is the right not to be treated differently, not to be discriminated against, on the bases of one of the so-called ‘protected activities’ of race, color, sex, age, religion, disability, national origin, etc.”

Protecting yourself

Although U.S. employment law clearly favors the employer, there are proactive measures employees can take to protect themselves. Being armed with the right information — and documentation — ahead of time is the best ammo in a job loss.

First off, if it’s not company policy to offer a severance package, try to negotiate one at the outset.

“Most employees are glad just to get the job and will instead end up signing non-competes,” says Joseph Colantuono, employment and business litigation partner at Colantuono Bjerg Guinn, LLC, in Kansas City, Mo. “I recommend that employees at least attempt to negotiate severance pay if they’re dismissed without fault on their part. And if the employer insists on a non-compete, they should attempt to negotiate that the non-compete is only in effect for the time period that they get severance pay. If the company won’t even agree to that, then they should attempt to negotiate that the non-compete does not apply if they’re dismissed without any fault on their part.”

Secondly, if you think you may be on your way to being terminated, Tuckner advises determining whether your imminent job loss is unlawful in any way.

“If an employee feels the winds of termination coming, the first consideration is to reflect on whether it can be associated with something legally distinguishing about that individual, such as her age, sex or race, or whether such action came about as a result of a protected class-related event, such as an upcoming or recently taken maternity or FMLA leave,” Tuckner says. “If this is so, the employee must ‘actually notify’ the company of this perception of discriminatory treatment, and whether the company agrees with this assertion or not, that employee is now substantially empowered in a legal and tactical sense.”

In other words, document, document, document.

“The employee at risk should keep thorough and detailed records of all conversations he has with his supervisor and any other member of management with respect to his work performance and/or other job related actions,” advises Philip S. Mortensen, labor and employment law partner for Barton Barton & Plotkin, LLP.

Facing the firing squad

If it ultimately does come to a dismissal and you find yourself in a room with HR, Colantuono counsels his clients to ask questions to find out why they’re being let go, as they’re not legally entitled to see their personnel file.

“The employee should ask questions regarding the dismissal reasons and should not sign documents until they have had time to read them, think about them and talk to an attorney,” Colantuono says. “When somebody is going through the trauma of a dismissal meeting, their head isn’t clear and they can’t make decisions about the documents they’re reading.”

For example, the employer may ask the terminated employee to sign a waiver in return for a severance payment, often called a “severance and release agreement,” which may absolve the former employer of liability with respect to termination or treatment on the job. In many jurisdictions, the employee is allowed a period of consideration before it must be signed in order to receive payment.

“If the employee is being offered severance pay, he should consider the possible legal claims he might have against the company and weigh that against the amount of severance that is being offered,” Mortensen counsels.

In some jurisdictions, says Colantuono, an employee is entitled to the written reason for his discharge and, if the employee was on group health insurance, he will be entitled to continue on the group health plan. Also, if the employee was not dismissed for willful misconduct, he will be entitled to unemployment benefits.

“If the employee is represented by a union, he may have the right to have his union representative with him at the meeting,” Mortensen adds. “If the employee is part of a major layoff, the employee would want to know how many employees were similarly affected as there may be certain rights under the Worker Adjustment and Retraining Notification (WARN) Act. In addition, if the employee is in a protected group and is part of a layoff, he would want to know the racial, etc., make-up of the other employees being laid off.”

© 2010, Tribune Media Services