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Anticipating and Coping with Disputes on the Job

Posted April 1, 2016 in Lawrence J. Sherman Articles

This article addresses an employee's worst nightmare: The employer suddenly and without an apparent justification fires the employee or, alternatively, reacts adversely when he/she gives notice of resignation. What should the employee do and how should he/she cope with this horrendous situation?

  • For what reason or reasons can an employer fire an employee?

Absent a written contract, an employer can fire an employee for any traditional accepted reason, such as incompetence, excessive absences, violating company rules, sleeping or taking drugs on the job, etc. The employer can also fire or lay off an employee due to downsizing based on losses of revenue, reorganization, a shift in business or mission goals, a merger with another company or transferring or contracting out the work to another facility.

Under the common law, almost all employees are employed "at will" and thus can be fired at any time for any virtually reason, good or bad so long as it is not a cover-up for unlawful discrimination. While these employees are also free to quit for any reason at any time, this legal fiction fails to address - let alone remedy - the clear imbalance in the economic power between employees and their employer. This legal fiction legal obligation also allows the employer to decline to provide advance notice of termination or severance pay before giving the employee his/her walking papers.

There are limits imposed by federal, state and local legislation to mitigate the harshness of this common law doctrine. Federal laws provide broad protection against employment discrimination. In addition to protecting against the same traditional forms of discrimination based on race, color, religion, national origin and age, state and/or local legislation also often provides protection against discrimination based on sexual orientation, physical and mental disability, and marital status. In addition, federal and state laws generally protect employees from being fired, demoted, denied promotion, etc. for having taken advantage of laws that protect workers against discrimination, unsafe workplace practices, blowing the whistle on management fraud, waste and abuse, etc.

These protections, however, are not universal and often do not really apply to any given set of circumstances in the workplace. For this reason, among others, an employee must always be careful in asserting his/her rights given the imbalance in economic power, the uncertain status of any potential legal claim, and the delay and expense of seeking vindication through the legal process.

  • What should an employee do if he/she has just received a warning and suspects that he/she will be fired very soon?

If an employee receives a disciplinary warning or notice, there are steps that he/she can take if this notification is believed to be unfounded or unfair, but these measures are far from foolproof. Please reserve these actions to a situation where the employee honestly believes that firing is likely based on the content of the notification and/or the circumstances surrounding the adverse employment action.

Before taking any action, the employee should make sure that he/she understands exactly what work conduct or performance triggered the notification. It is wise to check any employer handbook, policy manual or statement of work/performance expectations to see if there is a clear policy against the behavior or failing. If the employee is still unclear, ask for a meeting with the supervisor and/or human resources staff to discuss the issue more thoroughly. If the employee is represented by a union, the employee should ask a union steward or officer to accompany him/her to the meeting and, if possible, to take the lead in discussions.

If the employee disagrees with allegations that his/her work performance or behavior is deficient or poor, he/she may want to ask for the assessment in writing. After reviewing this document carefully, it is generally wise for the employee to prepare a written response or clarification to put the matter in a proper perspective and to ask human resources or the supervisor to put a copy of the response in his/her personnel file. However, the employee should take this course of action only if he/she feels that the employer's assessment is clearly inaccurate and harmful; otherwise, the employee runs the risk of escalating a minor verbal reprimand or disagreement into a far more significant matter � one that may even lead to the employer making one or more permanent notations in his/her file. It is often wise to discuss the situation with a friend or family member whose judgment is valued before taking action and/or ask this person to look at what you have written before providing it to management.

If firing is a real possibility, the employee should try to find out about any employer policy or program that can help him/her correct the problem or at least buy time to find another job and leave on fairly favorable terms. For example, the employee can ask for job training or coaching or to participate in an employee assistance program (EAP), if offered by the employer.

  • What can an employee do to protect his/her rights during employment and, especially, before leaving the job?

Irrespective of whether the employee ultimately decides to challenge the legality of his/her firing, he/she will be in a much better position to protect and/or to enforce his/her workplace rights if he/she carefully documents events arising in the workplace. If the employee applies for unemployment insurance benefits and the former employer challenges the application, for example, he/she will typically need to dispute the employer's assertion that the dismissal was based on misconduct or that any actual failing or deficiency on the employee's part constituted willful misconduct. Documentation will help.

There are a number of ways to document what happens at work. The easiest way is to keep an employment diary in the form of a little spiral notebook or by making notations on a personal calendar. No matter how recorded, the employee needs to provide a summary of each significant work-related event, such as performance reviews, commendations or reprimands, salary increases or decreases and even informal comments his/her supervisor makes about work. This record should include the date, time and location for each event or conversation in which any member of management was involved and also state whether any witnesses were present.

Whenever possible, the employee should be prepared to back up the entries made in this log with materials issued by the employer, such as copies of the employee handbook, memos, emails, and written evaluations, commendations or criticisms of his/her work. However, the employee should be careful to refrain from taking or copying any confidential documents of the employer. If the materials are stamped or can be reasonably regarded as confidential, the safer course of action is for the employee to summarize his/her recollection of the substance and source of the policy, etc. Taking confidential materials will surely haunt the employee if he/she decides to file a lawsuit because it provides the employer with an independent reason to fire the employee and/or a basis to impugn his/her honesty and credibility.

If the employee senses that a problem has developed or is in the course of developing, he/she should ask to see and copy his/her personnel file. If there are no terribly negative materials in the file, it is a good idea to make a list of every pertinent document in the file, prepare an index or list of the contents of the file, and get a signature or letter from Human Resources verifying the accuracy of the list. Taking this action will protect the employee if the employer later adds anything derogatory to the file because he/she will be in a better position to discredit the content of the new material based on the after-the-fact nature of the supposed documentation.

Conducting Depositions

July 22, 2016

There are no express ethical rules that govern preparing for, taking or defending depositions. While many rules touch upon these matters, they often give conflicting signals. For example, Rule 1.3, comment 3 of the Code of Professional Responsibility requires that a "lawyer should represent a client zealously within the bounds of the law. In contrast, Rules 3.3 and 3.4 respectively caution that a lawyer should exhibit candor towards the tribunal and fairness to the opposing party and counsel. Ethical concerns commonly arise in the context of fulfilling client expectations that prize zealous representation as well as by a need to counter equally zealous or even outrageous conduct by opposing counsel who is ostensibly acting in his or her client's interest. In these situations, therefore, it may be necessary for the employment to take into account applicable ethical and judicial standards and tailor his or her conduct accordingly.

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