Category Archives: Employment Law

At Will Employment

Under the common law in theUnited States, the employer-employee relationship is governed by the doctrine of “employment at will.” Employment continues only so long as both parties agree to it; unless there is a contract specifying otherwise, an employer may discharge an employee at any time without notice and without cause. The courts have held that the meaning of “employment at will” is that an employee may be discharged for good reasons, for bad reasons, or for no reasons at all, without giving the employee any legal grounds to sue for reinstatement or damages.

 

When an employee’s continued employment depends entirely upon the willingness of the employer to retain him or her. In other words, the employee has no contractual or other right to the job and, strictly speaking, can be dismissed for any reason or at the whim of the employer. However, because employment in theUnited Statesis now regulated by myriad labor relations, civil rights, wage, hour, health, and safety laws, the term “employment at will” is often used more loosely to mean that the employee can be dismissed at the will of the employer without significant procedural safeguards. In the public-sector, employment at will, which typically pertains to high-level or confidential political appointees, stands in distinction to civil service employees who can be fired only for just cause and have constitutional due process protection against arbitrary, capricious, or unlawful dismissals.

 

Under the at-will employment doctrine, either the employer or the employee can terminate the employment relationship at any time and for virtually any reason, as long as the reason for termination is not prohibited by law (e.g., discrimination on the basis of race or gender). The practical effect is that in many situations, anyone can be fired, and the employer is under no obligation to provide a rationale for firing that individual.

 

In written employment policies, including the employee handbook or personnel manual, state clearly that employment at your company is at will and explain what this means. Consider asking employees to sign a simple form or offer letter acknowledging that their employment is at will. A worker who has signed such a form will have a difficult time refuting it later.

 

Many employers have an initial probationary or temporary period for new employees, during which the company is free to fire the worker. Workers who survive this period are called permanent employees, entitled to benefits and so forth. To some courts, this language implies that an employee who becomes permanent can be fired only for good cause. If your company uses a probation period and you are responsible for writing company policies, make clear that the company retains the right to fire at will once the probationary period is over.

 

If you tell employees that their jobs are secure, that they will not be fired without good cause, or even that the company has never had to fire a worker, you risk creating an expectation that they will not be fired. Avoid these types of comments; they are particularly common when interviewing potential employees and giving performance reviews.

 

 

Employment Hiring

The employment relationship is like every relationship-it demands a tremendous amount of work and understanding, requires total commitment, and is based upon loyalty and trust. Without these essential components, there can be no connection. The success or failure of the employment relationship is the responsibility of both the employer and the employee. The relationship may fail for various reasons: The employer and employee have different perspectives or understandings of what is expected; they experience personality clashes or conflicting business objectives; conduct in the workplace is unacceptable or unlawful, such as sex discrimination or retaliation for asserting a legal right. If your business is hiring employees, consult with an experienced business lawyer. The lawyer can advise you on the laws that your business must comply with while hiring employees.

The following federal acts regulate the legal issues involved in interviewing and hiring:

1. Equal Pay Act of 1963

  □ Applies to organizations involved in interstate   commerce.
  □ Prohibits discrimination in compensation based on the   sex of the employee.

2. Title VII of the Civil Rights Act of 1964

  □ Applies to organizations involved in interstate commerce   that have 15 or more employees.
  □ Prohibits employment discrimination on the basis of   race, religion, national origin, and sex.

3. Age Discrimination Employment Act of 1967 (Amended in 1978 and 1986)

  □ Applies to organizations involved in interstate commerce   that have 20 or more employees.
  □ Employers may not discriminate on the basis of age.   Protected group are those from ages 40 to 70.

4. Rehabilitation Act of 1973

  □ Applies to organizations receiving federal funding   and/or organizations doing at least $2,500 of business with the federal   government.
  □ Prohibits discrimination by federal contractors based on   disability.

5. Immigration Reform and Control Act of 1986

  □ Applies to all organizations with four or more   employees.
  □ Prohibits discrimination based on national origin and   citizenship status.
  □ Makes it a crime for employers to hire illegal aliens.

6. Americans with Disabilities Act of 1990

  □ Applies to organizations involved in interstate commerce   that have 15 or more employees.
  □ Requires employers to provide reasonable accommodation   for disabled employees.
  □ Makes it illegal to discriminate against handicapped   employment candidates.

7. Civil Rights Act of 1991 (Amendment of the 1964 Act)

  □ Applies to organizations involved in interstate commerce   that have 15 or more employees.
  □ Extends punitive damages to victims of discrimination   based on disability.
  □ Shifts the burden of proof to the employer.

 

Here are a few good basic rules that promote sound and legal interviewing:

1. Treat all candidates equally.
2. If you would not ask the question of a male candidate,   then you should not ask it of a female candidate.
3. Ask nothing about a candidate’s personal life.
4. Focus on the candidate’s skills and qualifications as they   relate to the job.
5. Every question asked must have a direct and relevant   relationship to the qualifications required for the job.
6. Any measurement or parameter used to evaluate anyone for   anything in employment is subject to Equal Employment Opportunity (EEO)   regulations

 

 

Employment Law

Employment laws are complex. If you are an employer, you will require the services of an experienced employment lawyer. Employment lawyers will ensure that your business is in compliance with federal and state employment laws.

As an employer, whenever there is a vacancy in your organization, you will generally advertise the vacancy in newspapers. However there are restrictions on such advertisements. Employment attorneys are aware of these restrictions. Before you put out an advertisement for a job opening in your organization, you should have an employment attorney review the contents of the advertisements. Your advertisement should not discriminate against applicants based on a characteristic protected by law.

There are restrictions on the questions you can ask a job applicant during an interview. Most employers are unaware of these restriction but employment attorneys can advise you on these restrictions. Consult with an experienced employment attorney if you are unaware of these restrictions. You cannot ask anything that discriminates against applicants based on a characteristic protected by law.

As an employer, you must be have knowledge of Americans With Disabilities Act. This Act deals with the rights of disabled workers. Consult with an employment lawyer if you have any disabled workers. Employment lawyers are aware of the reasonable accommodations that employers must provide disabled workers under the Americans With Disabilities Act.

If you intend to have an employment contract with your employees, you must consult with an experienced employment attorney. Employment attorneys can help you draft employment contracts and ensure that your rights as the employer are protected under the terms of the employment contract. In the absence of an employment contract, employment is at will. However before you make any verbal or written promise to a prospective employee, you should always consult with an experienced employment attorney. A promise can change the nature of employment from an at will employment to an employment governed by a contract.

Although you are not required to have an employee handbook, you should seriously consider having one. Consult with an experienced employment attorney. Having an employee handbook will save time, headaches, and possibly legal fees in the long run. Employment attorneys can also help you draft an employee handbook in addition to the other services they provide.