September 1, 2011

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You’re Fired

Termination Decisions Require Good Legal Advice and Common Sense

Michael Patrick O'Brien

September 1, 2011

Lawyers probably should not get into heated discussions with their mothers and spouses about employment law. Nevertheless, at dinner one night when I still was a young lawyer, I tried to explain to my mother and my wife that in Utah, an employer can discharge an employee at will, i.e., for no reason at any time and without advance notice. I was mocked and told that not only must this be false, but stupid as well.

“Well, what do I know,” I responded. “I am only an employment lawyer.”

Of course, I was not wrong. I must concede, however, that my wife and my mom—working without the benefit of law school but with common sense—were not quite wrong either. (Please don’t tell them about this admission; I will never live it down.)

At-Will Exceptions
Utah is an at-will employment state. Thus, the rebuttable presumption is that an employer can fire an employee for no reason at any time and without advance notice. But this presumption can be rebutted. How? In Utah, there are three main ways.

1st If an employer enters into a contract with an employee, this presumption may change. For example, an employer and employee can agree in a written contract that an employee will work for a set number of years and be discharged only for certain reasons (e.g., breach of policy, crime conviction, etc.). Unionized workplaces are governed by group contracts called collective bargaining agreements. Utah courts have ruled that contracts also may be implied, for example by an employer’s written or verbal statements that reasonably can be understood to create some kind of employment other than at will.

2nd Utah courts also have ruled that an employer cannot discharge someone in violation of public policy. Thus, an employee cannot be fired just because he or she has refused to commit an illegal act, performed a public obligation (such as jury duty), reported criminal misconduct, or engaged in an activity encouraged or protected by Utah public policy, such as filing for workers’ compensation benefits when injured on the job.

3rd A business cannot fire a worker if the reason is prohibited by a law (statute or regulation). Although various state laws differ, federal and Utah statutes prohibit termination (and other discrimination or harassment) because of a person’s race, color, religion, sex, pregnancy, age (typically 40 and older), disability, genetic information, national origin, sexual orientation (in certain Utah cities and counties), military service or citizenship. Similar laws ban a discharge in retaliation for an employee’s complaint about discrimination or some kind of similar whistle-blowing activity or because someone has filed for bankruptcy.

Manage Risk
So how can an employer protect itself from a lawsuit resulting from firing a worker? There are several ways to minimize and try to manage this risk. Perhaps the most important way is to have in place an educated, competent and effective system of human resource management.

Employer handbooks and policies should clearly and conspicuously notify workers that (1) they are employed at will; (2) supervisors cannot change this status; and (3) handbooks, policies and other employer documents do not constitute employment contracts of any kind.

Even if a business is an at-will employer, it should always have a legitimate business reason for a termination, whether it is poor performance, misbehavior, violation of company policy, etc. An ideal termination occurs only after an employee has been plainly told what the employer expects and has been coached and given a reasonable chance to resolve performance problems. A business must be consistent and impose similar sanctions on similar infractions. And of course, all of this should be documented at the time it happens to provide helpful evidence if needed later when defending a claim or a lawsuit.

Employers should also publish policies prohibiting discrimination, harassment and retaliation. Any claim of the same should be promptly investigated and any problems resolved. Each business should train its supervisors to understand their obligations under the laws prohibiting discrimination and the regulations requiring leave and other types of assistance for employees who have health problems.

Last but not least, and at the risk of sounding self serving, it often helps to consult legal counsel before a termination. A competent and experienced employment lawyer can help spot the possible risks in any given job situation and help plot a course to put an employer in the best possible position to defend a lawsuit should it arise.

Perhaps my dinner conversation/debate with my own loved ones best sums it up. When dealing with employment terminations in Utah, both good old-fashioned common sense and some good legal advice are needed and welcome.

Michael Patrick O’Brien is a nationally recognized employment law attorney practicing with the law firm of Jones Waldo in Salt Lake City, Utah.

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