philosophy 134

Legal and Illegal Firings

(from

The Employer’s Legal Handbook

, by Attorney Fred Steingold, 2013,

and other sources)

In 1884 the Tennessee Supreme Court ruled that an employer can “discharge or

retain employees at will for good cause, no cause, or even for cause morally wrong,

without thereby being guilty of legal wrong” as long as the firing does not violate

legal contractual agreements made by the parties involved. This is the doctrine of

employment at will. It gives a company the same right as every individual employee,

who can quit for any reason whatsoever, no reason, or a morally reprehensible reason

(e.g. my boss is a redhead and I hate redheads, so I legally quit for that reason).

However, beginning in 1964 with Title VII of the Civil Rights Act, firings became illegal

if they were due to an employee’s race, religion, ethnicity, or national origin. Many

additional restrictions on firings have been added since, often depending on what

state you work in. In 1990 Congress passed the Americans with Disabilities Act (which

applies to all states). It prohibits discrimination against a qualified employee with a

disability (physical or mental) who can perform the job, even if she requires

accommodations. In addition, in 20 states today, you cannot be fired for your sexual

orientation or gender identity.

California extends more employment protection rights to employees than any other

state today. In California (but not in many other states), you are a “protected”

employee and cannot be fired for several reasons, including: Pregnancy, a

documented medical condition, your marital status, age (if you are over 40), current

military service or scheduled deployment with the Reserves or National Guard,

bankruptcy, your genetic information, your citizenship status (if you are a permanent

resident, temporary resident, or have worker status), serving on a jury, voting in an

official election, trying to form a union, filing a workers compensation claim, and

taking leave under the Family Medical Leave Act. In California, it counts as

discrimination (against a man) if you fire any male who is simply accused of sexual

harassment without conducting an investigation. In California, you cannot be legally

fired for reporting a safety violation to a regulatory agency. You also cannot be fired

in California for disclosing the amount of your wages (to anyone); for complaining if

you have not been paid; for complaining about workplace safety issues or reporting

such issues to a government agency; for complaining about or reporting unlawful

discrimination or harassment; for assisting someone else in reporting or opposing

discrimination, harassment, or retaliation; or for reporting a suspected violation of

state or federal law. However, to prove you have been illegally fired for any of these

reasons and win a court case, is not always easy. You need credible evidence that

you were fired for one or more of these illegal reasons (e.g. can you prove you were

fired for assisting your friend in filing a report of sexual harassment?). There are other

illegal reasons to fire someone: You cannot be fired in California for having AIDS or

HIV; for your political affiliations (allegiance to an official political party); for refusing

to commit illegal acts or for refusing to commit fraudulent business practices (e.g.

refusing to file a phony report with a state environmental agency, refusing to bribe

public officials, refusing to commit perjury, or refusing to spy). You cannot be fired for

participating in a regulatory or legal investigation into your company’s activities.

Expectant mothers (and fathers) in California are eligible to take up to four months of

unpaid pregnancy/newborn disability leave and you cannot be fired for exercising this

right.

There are more reasons an employee may be legally protected from discharge in

California. An employer cannot legally fire an employee if the employer made a

promise of security to a job applicant. This promise may be made explicitly or

implicitly, to one employee or several, in employment contracts, employee

handbooks, job descriptions, advertisements as well as job postings, interviews, and

office communications. These “contracts” have been taken by courts as implied

contracts of continued employment for satisfactory work by the employee. Years of

solid performance reviews and good service may be interpreted by courts as

evidence of a promise of future employment. However, a poor performance review or

documented customer complaints higher than complaints against other employees

(for instance) would weigh against an implied contract and could constitute a

business reason to terminate an employee.

Employers are wise today if they fire someone only for a documented business

reason (which could include poor performance reviews of all employees at the same

level, documented customer complaints of all employees, sales and attendance

records for all employees), since such proof overrides the various legal protections. In

other words, you can still fire a protected employee if you can prove he or she is not

performing the job he or she is being paid to perform (IF you give the same

performance reviews to all employees).

Many companies today attempt to retain their at-will firing rights by including in the

application forms, employee handbooks, and offers of employment that the job is “at

will” and the employer can be discharged for any reason at any time, and by having

the employee acknowledge the “at-will” status of the job in writing. But even this

approach has been limited by courts if the employee falls under a protected class and

he/she can show they are being fired for being in the protected class (e.g. having

AIDS or HIV).

So, any “regular” employee can be fired legally for any reason; however, if the

individual is protected (see all the various protections), the employer will lose a

lawsuit if sued

unless

the employer can show a valid, documented business reason

for the firing (which was applied to all employees) which then overrides the

protection.

And so, it is today foolish to fire anyone for anything other than a documented

business reason—for it could turn out that the person is protected (and you the

employer didn’t know it), in which case the firing could be shown in court to be illegal.

EXAMPLE: Betty, a diligent worker at AutoTec, is offered a job by a rival employer.

She declines the job after AutoTec’s president tells her she’ll have a job for life at

AutoTec if she continues to effectively manage her workload. Three years later,

AutoTec fires Betty, even though she has kept up with her work. Betty sues for

wrongful discharge, claiming AutoTec violated its employment contract with her by

firing her. Betty wins.

Betty would need evidence the promise was made (a witness or an email, for

instance) to win her wrongful termination case. If there is language in the employee

handbook which implies job security, then the employee would be entitled to job

security if he/she is performing well at work. Specific promises of job security are not

always necessary for a judge to rule that an employee cannot be fired arbitrarily.

Judges have allowed employees to collect damages or to be reinstated if the

employer merely implied that the employee wouldn’t be fired without good cause.

EXAMPLE: After six months on the job, Tom is fired from Syspro, a small software

house. He sues for wrongful discharge, claiming that Syspro fired him without a good

reason even though its employee handbook led him to believe that he’d only be fired

for good cause. The judge agrees. The court rules that the employer’s wording in the

handbook constituted an implied contract and the employer did not provide a good

cause (a job-related cause) to fire Tom.

Does the handbook list the reasons for dismissal (e.g. performing poorly on the job,

abusing sick leave, being excessively absent or tardy, possessing a weapon at work,

being dishonest, using alcohol or drugs at work, gambling at work, etc.)? If the

handbook states the employer reserves the right to fire an employee for any reason,

that makes it more difficult for the fired employee to win a lawsuit, but the handbook

cannot say this in one place and deny it or implicitly deny it in another place. As an

employer, don’t take chances. If you fire only for just cause (for good reason), you will

be legally protected against lawsuits that attempt to show you fired illegally, whether

the employee is protected or not.

EXAMPLE: Rita has worked for Jones Enterprises for nearly 25 years. The company

fires her just three months before her retirement benefits are to become permanent.

In a wrongful discharge case against Jones, the judge finds that the company fired

Rita to save itself the expense of paying her the full benefit of her retirement

program. The firing breached the implied covenant of good faith and fair dealing

(and Rita–being over 40–is part of a protected class).

As an owner or manager, fire only for a legitimate business reason and have

documented support. Employers should be able to show: The employee knew his or

her job duties; the employee knew the consequences for failing to meet the job

duties, all employees have regular performance reviews; there were prior warnings

given to all derelict employees; there was an appeal process in place for an employee

to argue his/her case and/or to respond to allegations (if the violation was minor:

Employees should be fired immediately for major violations of company policy, or

even prosecuted if the case warrants it). HR should handle all documentation

consistently for all employees, from job advertisements, to job applications, to

performance reviews. Employees should sign their performance reviews.

EXAMPLE: The Mail Shoppe employs two men and one woman, Virginia, in its

packaging department. One Friday afternoon, the owner fires Virginia. She then files

a lawsuit claiming she’s been discriminated against because of her gender. In court,

the Mail Shoppe’s owner is able to show that Virginia frequently put too little postage

on packages and often neglected to insert bubble wrap as instructed, causing

breakage and numerous customer complaints. The owner also shows that three

written warnings were given to Virginia over a six-week period. The judge dismisses

the gender discrimination lawsuit.

Use consistent procedures and documentations for all employees. If you let one

employee engage in questionable activities, you might find yourself facing a lawsuit if

you fire another for the same. If you electronically monitor your employees, obtain all

employees’ express consent to these specific practices when each person is hired,

include your monitoring policy in your company handbook, and do not monitor only

the younger workers or female workers, for instance.

EXAMPLE: Andrew, a black nurse, is a half-hour late for work three days in a row. His

employer, a medical clinic, fires him. In suing for wrongful discharge based on illegal

discrimination, Andrew shows that two white nurses had been similarly late in recent

weeks but received only a verbal warning. Even though excessive tardiness is a valid

business reason for firing someone, the jury awards damages to Andrew because the

employer applied the rules unevenly and unfairly, and so the employer is found guilty

of racial discrimination. (If Andrew were white, the employer is guilty of treating his

employees inconsistently, but Andrew would not fall under a protected class and so

could not utilize the inconsistency to his advantage in court, under existing law.) If

you are not subjecting all your employees at the same level to the same rules, one of

those not treated the same may fall under a protected class, in which case he/she

could win a lawsuit for workplace discrimination.

EXAMPLE: An insurance brokerage firm received complaints that Ralph, a senior vice

president, sexually harassed other employees. Ralph denied the charges, so the

company interviewed 21 people who worked with Ralph, including 5 that he asked to

be interviewed. The company concluded it was more likely than not that harassment

had occurred, so it fired Ralph. Ralph sued for wrongful discharge, claiming he had an

implied contract requiring good cause for firing him and that there was no good cause

because it had not been proven he had engaged in the alleged misconduct. The court

ruled it wasn’t necessary for the company to prove that Ralph had actually

committed the sexual harassment. The company had only to show that it had a good

faith belief that Ralph had engaged in the misconduct. The results of the company’s

extensive investigation were sufficient to establish that good faith belief. The

employer has the right to fire someone he believes, upon the strength of a good faith

investigation, is engaging in activities prohibited at the company.

Employees can be laid off if business is not going well. But sometimes the layoff is a

smokescreen for getting rid of employees for illegal reasons. If a layoff affects a

legally protected employee

only

, the employer is vulnerable to a lawsuit.

If your employer creates an abusive work environment for you; insists you put in

excessive overtime; demotes you without good reason; tells you to quit or you will be

fired; or substantially changes your duties without good reason, this counts as being

fired (“constructive discharge”). Now the question becomes if you are part of a

protected class and this treatment of you was inconsistent with the treatment of

others.

A recent example: The Twitter account @YesYoureARacist revealed the identities (by

photos) of those who marched in favor of white nationalism at Charlottesville (in the

hopes of getting these individuals fired from their jobs). This march unraveled when

Heather Heyer, aged 32, was killed. She was marching against the white

supremacists. She was a paralegal. If a client calls your business and says it has

come to their attention (through photos, online media, or Twitter) that one of your

employees appears to be a Neo-Nazi and was marching, what should you, the

company president, do? There are two issues. One is the internal employee issue and

the other is the external public relations issue. If the allegations are confirmed, the

employer can decide to “rehabilitate” the person and change his/her ways; the

employer has the right to attempt that. The employer can also choose to fire the

individual if it is causing uneasiness or hostility between other workers, and/or if it

causes your company to gain unwanted negative publicity (and/or to lose customers).

Even if the Supreme Court never rules on whether or not it is legal to discriminate

against white supremacists, your company can make it clear from the beginning that

it does not tolerate discrimination against anyone, including someone’s LGBTQ

identification. This is also your company’s right, but it has to be explicit as a company

policy that all employees see and agree to before being hired.

EXAMPLE: Bridgette is a new employee at a bank. Her boss, a married man, is

harassing her. Ken tells her to wear more attractive clothing and criticizes her work

unfairly, repeatedly. This is now a hostile work environment. Bridgette reports Ken to

HR and hopes the behavior will stop. Bridgette is shocked when she is let go. Was this

firing illegal? California law includes protection from firing for reporting sexual

harassment,

but

unless Bridgette has evidence she was harassed (or being subjected

to a hostile work environment), the company can claim they fired her simply to let

her go (invoking their at-will firing rights). The company could be in danger of losing a

lawsuit if it turns out that Bridgette falls under a protected class

and

if her

performance reviews and other employee documentation showed she was as good as

any other employee.

Business Ethics

Essay I

Write an essay about 5 pages long with 12-point font, 1.5 spacing between lines, and

standard margins. Essays are due by the beginning of class on Friday, March 15. You

may submit a paper copy to me or email your essay to me as an attachment (at

hpressman@csun.edu) but I must receive your essay, be able to open it, print it, and

be able to read it, by the deadline in real time, or it receives the late penalty (no

exceptions). Once I open and print your essay, I will respond to let you know I have it.

So, even if you sent it, but I did not receive it, by the deadline in real time, and it was

an electronic error that was the cause of my not receiving it, you still receive the late

penalty. The late penalty is: -10 points every 3 days your essay is late, no exceptions.

Essays are worth 100 points: 90 for content and 10 for grammar.

Prompt: Choose any 5 of the following 8 cases (A-H) below, and answer questions (I)

and

(II) for each case you chose, clearly and thoroughly. Do not use any outside

information but only what is given in this handout and our textbook to make your

argument about each case. (Many of the cases are real, but do not research any more

about them, even if you find out my report of the incident is somewhat inaccurate;

argue only about the case as I have presented it and use only the information about

what constitutes a legal or illegal firing I have given in this handout.)

(I) In the case as described, would the firing be legal in California? Explain whether

the firing would be legal or illegal in California, and why, given all the relevant criteria

from the handout above that make a firing legal or illegal. (Be sure to mention points

from the handout, for either side of your argument.)

(II) In the case as described, would the firing be ethical? To answer this, apply one of

the two major ethical theories given in our text: utilitarian theory (the greater good is

produced) and Kantian/deontological universal principles of right and wrong (it is

always wrong to break any absolute moral rule or violate someone’s absolute ethical

rights). Justify your conclusion.

Case (A): Tim owns a Hooters restaurant. One of his servers, Gina, who is 20 years

old, has been with the restaurant 2 years. She has recently undergone a breast

reduction

surgery. Subsequently, she now has the smallest breasts of any server at

the Hooters restaurant. Gina did not tell Hooters about the operation beforehand, nor

did she tell the company why she elected to have it. Management decides she no

longer fits their image of a waitress (despite doing okay as a waitress so far), and

they think they can find another server with larger breasts. Management decides to

give Gina two weeks’ notice. Was this a legal firing in California? An ethical one?

Case (B): Ron loved music and was lucky enough to get a job at a record company. It

was an entry level job, but he did get perks: He could meet with musical artists and

have lunch with them. To promote the artists, those in charge of promotions would

get hundreds of CDs to give to radio stations to promote a new album or band. Ron

noticed his supervisor, Dan, was always taking hundreds of CDs but he (Ron) never

saw Dan give them to any outlets that would air the music. He soon found out why. It

turned out Dan was making extra money by selling the promotional copies to record

stores in town (which then sold them). Ron did not want to report his supervisor Dan,

but he eventually thought it was illegal to remain silent and if thought if he failed to

report it, he could be viewed as an accomplice. So, Ron mentioned to Dan’s

supervisor, Steve, what was occurring. The practice was deemed by Steve to be

highly improper. Dan, Ron’s supervisor, was then fired. But then, after thanking Ron

for bringing the matter to his (Steve’s) attention, Ron was also fired! It was explained

to Ron that though he did the right thing, he had rendered himself unemployable at

the company. With his demonstrated lack of loyalty to his supervisor, no other

supervisor would want to work with him. “Nobody likes a snitch.” Was Ron legally

fired? Was he ethically fired?

Case (C): Gregory Salcido was a high school history teacher and a member of the Pico

Rivera City council in southern California. In 2018 one of his students (who was

wearing a Marine sweatshirt and whose older brother is a Marine) filmed Salcido with

his cell phone and released the footage on the internet. Salcido could be heard and

seen saying to his students: “The military are not high-level bankers, they are not

academic people, they are not intellectual people. They are the lowest of the low.”

And: “I don’t understand why we let the military guys come over here and recruit you

at school. We don’t let pimps come in the school.” He also told the student who was

wearing the Marine Corps sweatshirt to not join the military. The El Rancho Unified

School District released a statement a few weeks after the video went viral: “Our

classrooms are not the appropriate place for one-sided discussions that undermine

the values our families hold dear.” Salcido was terminated by El Rancho High. Was

this firing legal in California? Was it ethical?

Case (D): Gustavo is the manager of a Target in Santa Barbara. He notices his grocery

department manager, Jake, on Sunday (a day he was not scheduled to work), walking

his dog in a public park and wearing a white supremacist tee shirt and an anti-

immigrant cap, which read, respectively: “Make America White Again” and “No Legal

Rights for Illegals.” Gustavo snapped a photo of Jake to prove what he saw (it was in

fact Jake and he was in fact wearing those items), and then Gustavo notified upper

management of what he saw. Target decided to give Jake notice of termination. Was

this a legal firing in California? An ethical firing?

Case (E): A chapter in a public California high school biology textbook (the only

biology textbook used in the district) claims both the pill and the Depo-Provera shot

cause young women to develop cancer and/or to become infertile at high rates. The

book cites only one study in a footnote (the only known study that reports this as a

possibility). That one study claims that the evidence

is consistent with

the hypothesis

that the pill (used nation-wide beginning in 1960) and Depo-Provera shot (used

nation-wide since the 1990s) cause women infertility problems and higher cancer

rates later in life. (There are dozens of other studies showing this is false. Over 90%

of studies show that pill users and Depo-Provera shot-takers have the same

percentage of cancer and infertility as women who do not take either; the only

increase in rates is for women who smoke cigarettes and take the pill or get the

shot.) The biology book’s author believes sex is moral only within marriage. The book

reports (truthfully) that neither the pill nor Depo-Provera prevents STDs and that

neither is 100% effective against pregnancy. Does the high school district have the

legal right to fire the person (Mr. Jones) who is solely in charge of textbook adoptions

for the district, for adopting this textbook? Would it be ethical to fire him?

Case (F): Isabelle works in an office building where smoking is not permitted, so she

can only smoke on her breaks and has to leave the building to do so. Most of her

fellow workers congregate around the back door to smoke their cigarettes, but

Isabelle prefers to sit in her car and listen to music on the radio during her 15-minute

breaks. One day, as she had done dozens of times before, Isabelle was sitting in her

car smoking a cigarette during a proper break. This time, however, the owner of the

business happened to look out his window and saw Isabelle smoking in her car. For an

unknown reason, he decides to fire her the moment she returned from her break. Is

this a legal termination in California? An ethical one?

(G) A woman walking on a public sidewalk in sunny southern California was caught on

cell phone video speaking to an Asian American family in Long Beach on Friday,

March 2, 2018. The clip was posted to Facebook and went viral. The woman, who

appears to be white, walks away from the camera and says: “You need to go back to

your country” to Tony Kao, his wife, and their baby. When Kao walked after the

woman asking her what she meant, she continued to speak as she walked away: “it’s

not safe because there are too many people like you here, invading…you’re making

my culture extinct.” The woman was later identified as 58-year-old Tarin Frances

Olson, a therapist, author, and professor in the Counseling Department at Golden

West College in Huntington Beach, California. Golden West College responded to the

incident by posting on its Facebook page: “It has recently come to our attention that

there was a video posted on Facebook of a GWC faculty member making comments

that the College does not condone or support. Golden West College believes in an

inclusive and welcoming environment for all students.” If the college decided to fire

her (which they did not), would it have been legal? Would it have been ethical?

Case (H): A university professor publishes an academic book. This book is packed

with statistics and data (references and sources) covering the past 30 years of IQ

testing in the U.S. at many schools (K-12) and the military, from across the U.S. From

the statistics the professor concludes whites are more intelligent than blacks, even

when the income and education level of the black and white test-takers are equal.

This book angered many people and scientists who believe there is no innate

difference between any races in intelligence: that differences are environmental or

educational. The professor’s book attempts to prove otherwise, though some scholars

(such as Stephen Jay Gould) published an article showing flaws in the book’s

arguments. Does the university have the legal right to fire the professor (who doesn’t

have tenure yet) in California, if it is discovered later that some test scores (in other

cities) were left out of his book? Does the university have the right to fire him if it is

learned that on many of the IQ tests several participants left their race “undisclosed”

and the professor purposely did not factor those tests in, or disclose this fact in his

book? Would the firing be ethical?

 
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