Can you still survive "At Will" : Employment woes in legal firms

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But it is more than just these types of protections that severely limit any kind of dismissal without just cause. Employers are in a tremendous battle for talent, says Michael J. Lotito, a partner in the San Francisco law office of Jackson Lewis. "With the employment rate being what it is, the emphasis on knowledge workers, problems with our educational system in terms of capabilities, and the fact that baby boomers will soon be retiring," he notes "employers more than ever want to be known as employers of choice. So you cannot get a reputation as an employer who acts arbitrarily. People will not work for you."

Lotito explains that the at-will doctrine has been eroding since 1927, when the Railway Labor Act was first enhanced, followed in 1935 with the National Labor Relations Act. "That was really the beginning of the concept of having for-cause terminations," he explains. "It was borrowed from the unionized sector into the union-free section in an effort to try and preserve union-free status. Then we continued to create additional statutory erosions to the concept of at-will over the following decades.

Can you fire anyone anymore?

While it may be true that there are basically no unprotected workers, in one way or another, Petesch reminds employers, the claimant still has to show that the adverse employment action was taken on the basis of either the protected activity or protected characteristics. "There are still courts out there saying that the reason might not be fair or the action may not be something the court would have taken if they had been in the employer's shoes," says Petesch, "but absent unlawful discrimination or any other kind of unlawful motivation, we are not going to second-guess the employer's decision. The eroding at-will doctrine still has some life in it."

Some employment lawyers may have a difficult time believing that at-will is still surviving. Lotito says, "When you get into the 'country' of California, the doctrine is narrowed even more because of more expansive laws and protections." There is a mass of federal, state, and sometimes local legislation that gives employees all different kinds of rights that absolutely contradict at-will employment. In addition, says Lotito, you also have judges who basically create common law or judicial rights.

While employers need to worry about possible legal claims, whether or not they have merit, whenever they fire someone, Petesch observes, it is still difficult for employees, absent proof of unlawful discrimination, and creates an inference of discrimination or retaliation.

There has been an upswing in some claims, especially whistleblower, pregnancy discrimination, gender and other claims, he says; and it is not a bad idea for employers to be concerned about it. "Worry can be good because it makes you more careful," he suggests. "But on the other hand, there is nothing worse for an organization than keeping a nonproductive, unhappy employee, and employers should not be deterred from taking action on that."

The paper trail

The smaller employer is at significant risk, says Lotito. He cites the fact that if an employee sues a large employer, the company may not be happy about it, but the organization almost always survives and moves on. Small employers, however, may not survive such a hit. The end result could be that the organization is demolished, which is why smaller employers should be spending more time, instead of less time, making sure they have the fundamentals in place.

Employment lawyers can help. Because so much depends on employers' keeping a paper trail, Lotito suggests that employment lawyers put together packages of forms for employers to use: applications and disciplinary and evaluation forms. "Employers should not be relying upon a piece of paper or a printed application form that they got from a neighborhood stationary store," he warns.

Petesch suggests developing a checklist for clients that helps them be sure they are following proper procedures when they are considering terminating an employee. "Focus on the front end of the process when contemplating taking an adverse action against an employee," he advises, "instead of the back end, once the horse is out of the barn. The front end is the opportune time to forge the best-possible case."

In addition, attorneys should discuss with employers some of the opportunities the law firm could provide with respect to training and education of their managers and supervisors.

Though smaller employers may be at greater risk if an employee files a claim against them, larger organizations need to make certain they are not being complacent about following proper procedures when taking an adverse employment action either. Attorneys for larger firms can help them understand that it is all about doing their homework, says Petesch. Help them figure out what protected activities the employees may have recently been involved in and the protected classes they are in. Make certain that terminations are consistent with terminations or disciplinary actions in the past. "In other words," he advises, "companies need to bend over backwards to make sure this employee is being treated as fairly as other employees in the organization."

Let your clients know that if they think there may be some concern about their actions, they should slow down and do some deep probing. There have been instances, says Petesch, where front-line managers have gotten frustrated with an employee, but it has more to do with the person's protected activities, such as absences covered under FMLA, than anything else. Go through a reality check before taking any action.

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