Employment Law in the Real World
Employment Law in the Real World
Employment Law in the Real World is a fictional first consultation with a new client who has just lost his job, and who finds out just how many legal rights he doesn’t have, among other things.
Client: I’ve been fired!
Lawyer: Don’t tell me – Let me guess. After years of loyal service.
Client: Can they do that?
Lawyer: Already did it.
Client: Come on. Your business card says “employment rights”.
Client: I admit I’m a little unsteady, but I’ve had a rough day.
Lawyer: Tell me about it.
Client: My boss told me I was being separated from the payroll.
Lawyer: So. I get you and some white-shoe downtown lawyer gets the payroll?
Client: You’re wearing white shoes.
Lawyer: Yeah, but these are my real shoes. The downtown lawyers’ white shoes are their health club workout shoes.
Client: You could use a workout yourself, it looks like.
Lawyer: Do you want a free consultation or not?
Client: This payroll separation isn’t fair at all.
Lawyer: That’s probably immaterial.
Client: But I’ve been discriminated against!
Lawyer: Race, sex, age or disability?
Client: None of the above. Me. They discriminated against me!
Lawyer: Probably legal.
Client: How can that be?
Lawyer: The basic law of the workplace in Wisconsin is a common-law doctrine called the “Employment-at-Will Doctrine.” This wonderful American invention says that the employment relationship can be terminated by either party at any time, with or without advance notice, for a good reason, a bad reason, or no reason.
Client: So if they can fire me on a whim for no reason Ill bet they can heap all manner of indignities on my head, like taking away my corner cubicle, for no reason on a second’s notice, too.
Lawyer: You’ve got it. Some other states have appreciated the harshness of the employment-at-will doctrine and recognized an implied promise of “good faith and fair dealing” in the employment relationship. But although Wisconsin recognizes an implied promise of good faith and fair dealing in every other contractual relationship, our Supreme Court decided not to recognize it in the most important contractual relationships most of us ever enter into: Our relationships with our employers. And, in another case, our Supreme Court basically said: In case you didn’t get it, employers have the legal right to fire employees for reasons that are morally wrong.
Client: What I meant when I said that my boss discriminated against ME was that he treated me worse than the other workers just because he didn’t like me. You’re telling me that if that wasn’t due to my membership in some protected species, it was legal.
Lawyer: You should have gone to law school.
Client: Then how do you make a living as an employment lawyer?
Lawyer: There are exceptions to the employment-at-will doctrine. First, lots of government employees are protected from arbitrary discipline or unjust dismissal by civil service laws. Also, government employees — but not workers in the private sector — have some constitutional rights that apply on the job. Second, some categories of workers, mainly those groups that have been historical targets of prejudice, are protected from discrimination by lots of federal, state, and local laws. Third, workers are protected from retaliation for doing some things the law wants to encourage. For example, you would have some recourse if you were fired for refusing to commit perjury for your company, or for standing up against discrimination or trying to start a union. Finally, some workers have contracts. A very few star players have individual written employment agreements. Many more workers have union contracts. Most of us think of unions only as organizations which bargain for wages, benefits and working conditions, but the fact is that almost all collective bargaining agreements contain job security provisions which protect workers from unjust actions. After a short probationary period during which the employment-at-will doctrine applies, most union workers can’t be discharged without just cause, except in a bona fide reduction in force.
Client: I asked about job security in my interview and my boss told me that if I did my job and kept my nose clean I wouldn’t have anything to worry about. Is that a contract?
Lawyer: I’d say you probably kept your nose a little too clean. Hah-hah. Seriously, most oral employment promises aren’t enforceable (with some big exceptions) and it’s probably going to be your word against his as to whether such a promise was even made. Lawyers like to say that oral contracts are not worth the paper they’re not printed on. Hah.
Client: I also had to sign an employee handbook that promised progressive discipline — you know: oral warning, written warning, suspension — before any discharge, but I never heard so much as a discouraging word before I was canned. Can we do anything with that?
Lawyer: The Wisconsin Supreme Court held in the 1980’s that some employment handbooks can amount to legally enforceable contracts. After that decision came down, most employers put “this-is-not-a-contract” disclaimers in their handbooks. I’ll have to look at yours.
Client: What really made me mad is the way they did it. I asked why I was being let go and the boss told me he didn’t have to tell me.
Lawyer: Technically, he was correct, but it was a bad move anyway since it drove you here. Did he have you immediately escorted out of the building by a security guard, tell you were forbidden to say good-bye to anyone and shout after you that evermore you would be a trespasser there if you came back?
Client: That really got me boiling!
Lawyer: Forbidden to clean out your desk? Had to pick up your personal stuff in a cardboard box on the back steps on Sunday morning? Your picture of Cindy Crawford was missing and there was nobody even around to ask about it?
Client: Well, it was Dolly Parton, but how’d you know all that?
Lawyer: Some lawyers represent workers and some represent companies but we all starve without lawsuits. This consultation is free, and I won’t make any money off you unless we start a lawsuit and win it. Employers’ lawyers can bill a few hours for giving preventative legal advice, but they really only get those hourly meters screaming when there’s a lawsuit to defend. Lawyers on both sides make more money when there are more lawsuits. And, we all know that fired workers come to lawyers more because of the way that they were fired than because of the fact that they were fired. So, we have an unspoken understanding that employers’ lawyers will advise their clients to fire workers in the most peremptory, heartless, and insulting ways possible to imagine. That all but guarantees that the fired workers will come to see employee-side lawyers like me, and all the lawyers on both sides will have plenty of work to do in court.
Client: I don’t care. It still makes me mad.
Lawyer: It makes me mad, too. It’s supposed to. Let’s hit the books and find a way to get ’em!
Client: This isn’t about the money. But a million would not begin to heal my pain.
Lawyer: I’ll tell you how much money will heal your pain after I look at your case and their litigator. If you’re so upset, how come you waited all of thirty-five minutes to consult a lawyer?
Client: I was on hold on my car phone. “Sixty Minutes” turned me down flat.