We get it – lawyers are expensive. This recurring series seeks to help employers and employees in deciding whether calling your lawyer in a certain situation is unnecessary, is dependent on your risk tolerance, or is an absolute must.
<hr style=”width:58%;text-align:center;margin-left:0; margin-bottom: 10px;”>
First, a definition of the at-will employment doctrine. From The Law Dictionary: Employment At Will “means that any time for any reason either the employer and the employee can quit the employment relationship.” That’s succinct – and that means that you don’t need to call your RKW employment attorney, right? Not so fast.
You need to ask yourself four questions to start:
- Does this employee have an employment contract (or is subject to a collective bargaining agreement)? If the answer is yes, then employment is likely no longer at will, and you likely will need to consult counsel regarding the terms of the relevant agreement.
- Has the employee made any complaints about the workplace? Virtually every employment-related law contains anti-retaliation provisions. This means that if the employee has made complaints about discrimination, harassment, wages, safety, etc., then the employee engaged in a protected activity, and any disciplinary action thereafter could be viewed as illegal retaliation.
- Is the termination being imposed in a consistent manner? How many other employees have engaged in similar activities and been terminated? More importantly, have any employees engaged in similar activities and not been terminated? Discrimination claims are not based on whether a level of discipline was appropriate – rather, whether the discipline imposed was consistently applied.
- What policy was violated by the employee? There is virtually no showing required for an employee to make a claim of discrimination with the EEOC or other federal agency. If they do so, it’ll save you significant expense if you can articulate a legitimate reason for the employee’s termination with documentation, rather than relying on your ability to terminate at-will.
There will certainly be instances where you won’t need to take the time to call your attorney. If you watched your employee cuss out a customer or assault a coworker, you probably don’t need to take the time to schedule a call with your lawyer. If you’re unsure about any of the answers to the four questions above, however – a consult with an attorney on the front end could save you exponentially on the back end.
