Thursday, December 12, 2013

Termination Terms By Mark Stubbs

A confusing area of the law for employers can be that of terminating employees. 

Levels of Law.  The employer-employee relationship regarding termination is governed by several levels of law.  Let’s sort those out to help simplify things.  We will examine some common terms and concepts that are used and try to clarify some common and sometimes universal misunderstandings. 

At Will Employment.  Most employment relationships are “at-will” meaning that the employee can leave at any time and the employer can ask the employee to leave at any time. Employers in the private sector are not required to give an employment contract to an employee so employment can be terminated for the employer’s own reasons.

          First Exception.  An employer who is unionized is an exception to that at-will doctrine. The termination of employees can be governed by the terms of a collective bargaining contract. A union representative is often assigned to help the employee

        Second Exception.  If there is a written contract it will likely address reasons for termination such as, violations of the law, embezzlement, committing harassment at work, and so on.   Caveat: A contract can recite that employment is still “at-will” and set out other terms.   

       Other Exceptions.   Termination of an at-will employment relationship will be scrutinized under other circumstances.  If an employer has 15 or more employees, a termination can be reviewed upon an employee complaint if it is for reasons of age, race, religion gender, handicap, and other constitutionally protected categories.  

Right-to-Work.  Probably the most commonly misused phrase and misunderstood concept in employment law is right-to-work.   Some folks say that an employer can fire an employee at any time because Utah is a right-to-work state.  The principle is sound but the reason is wrong.  Right-to-work refers to a state where the law allows a person to work in a union shop without being forced to join a union and pay union dues.  In non-right-to-work states an employee can be refused a job or fired for not being a union member; not paying union dues. 
Conclusion.  There are many employment law issues for a company to deal with.  Just remember that it is not impossible to comply, and many state agencies, employer organizations, and attorneys are available to help you through the maze.  Prevention is always cheaper that cure.