Legal Bites

Usually, the answer is yes, says Lewis Maltby in his new book entitled, “Can They Do That” which was recently featured on National Public Radio. Like most employment lawyers, Maltby says he has received numerous calls from friends and clients literally asking, “Can they do that?” as they refer to an unpopular action taken by their employer. Bottom line, in the “at will” world in which we leave, chances are the answer is “yes.” An employer can discharge a worker for any reason or for no reason at all, unless there is an employment contract stating to the contrary. There are few exceptions to the “at will” doctrine, although the law varies amongst the several states. Typically, the only exceptions to the “at will” doctrine are statutory (such as the anti-discrimination laws, whistleblower protection laws, or other anti-retaliation statutes) or limited common law exceptions (including the “public policy” exception to the “at-will” doctrine which prohibits employers from taking action against employees for doing what public policy would encourage or refusing to do what public policy would discourage). Most of the slings and arrows of outrageous fortune that employees face in the workplace do not fall within these exceptions.

In other words, it’s a free country, and if you don’t like your job, you can leave any time you want. But that freedom for the most part is mutual, and if your employer at any time just gets sick of looking at you, there’s little law to stop that from happening.

That said, every state is different. In the allegedly conservative State of New Hampshire, the jury, not the judge, defines what constitutes a “public policy” that could form an exception to the “at will” doctrine. That approach makes it very difficult for employers to have public policy wrongful discharge cases dismissed before trial, and once something is in front of a jury, anything can happen. Indeed, the seminal case in New Hampshire, Monge v. Beebe Rubber Co., 114 NH 130, suggests that the “public policy” exception amounts to another way of describing “bad faith” employment termination, and further explained that “a termination by the employer of a contract of employment-at-will which is motivated by bad faith or malice or based on retaliation is not in the best interest of the economic system or the public good and constitutes a breach of the employment contract.” Monge v. Beebe Rubber Co., 114 NH 130 (1974).

By contrast, the allegedly liberal Commonwealth of Massachusetts has through its judicial opinions identified a very limited set of matters that could be considered of the sort implicated a “public policy.” See Wright v. Shriners Hospital, 412 Mass. 469 (1992). The failure of a discharged employee to assert circumstances falling within such matters would likely lead to summary dismissal, either at summary judgment or even earlier, leaving the employee with little legal recourse.

As we have noted recently in this blog when reporting a recent federal court decision out of New Hampshire, not every act of unkindness constitutes a “public policy” violation, although where to draw the line in some states may well be in the eye of the beholder. As for statutory claims, the federal courts have frequently noted that the anti-discrimination laws are not a “code of ettiquette” and that only “severe and pervasive conduct” that creates a “hostile work environment” can create liability for employers. Even then, not all “hostile work environments” are unlawful. Only those environments that are hostile as a result of unlawfully discriminatory practices are unlawful. A mean boss, who may be hostile, does not necessarily create an unlawfully hostile environment.

So what? While the deck may appear stacked against the employee, the law does allow for enough ambiguity to create messy litigation for employers who engage in what may appear to be unfair acts, even if such acts may not be unlawful. The best approach for employers is to focus on the business, make decisions based on objective criteria, and remember TCD: i.e. timing, consistency and documentation. For any employment decision, employers should take action soon after the event that gives rise to the need to take action (i.e. avoid discrimination claims by disciplining immediately and not waiting until after, by some bad luck, the employee tells you he needs leave or an accommodation), treat all employees consistently (consider a progressive discipline policy for all managers to follow so that employees at all areas in the company receive at least similar treatment), and document decisions and their bases well (make a record that reflects the legitimate basis for decisions as juries and judges believe paper more than memories). That way, employers can go a long way towards protecting themselves from a wrongful discharge claim.

Meanwhile, employees should be advised that, while there always may be legal weapons for the opportunistic, the legal landscape in the end does not seek to or even purport to address all ills in the workplace.

Chris Vrountas, Chair of the Employment Counseling and Litigation Group, contributed this posting.