Is It Time To Terminate At-Will Employment Laws?

Montana remains the only state in the nation that does not have at-will employment. At-will means you can be fired for any reason or no reason at all. Boss in a bad mood? That's a firing? Doesn't like your shirt? You're outta there.  Sure, there are exceptions like discrimination and whistleblower laws, but otherwise you're at the mercy of your boss.

So why haven't American workers risen up and said it's time to terminate at-will employment?

Well, maybe they're finally starting to, thanks to SEIU. In February, New York City saw a proposed just-cause bill introduced to protect fast-food workers at the behest of SEIU. Philadelphia passed a just-cause ordinance to protect parking industry workers last week, also at the urging of SEIU.

Montana, unlike every other state, requires employers to have just cause before they fire workers. And isn't that fair? Your family's ability to buy food and pay for shelter depends on your job. Most Americans are $400 of unexpected expenses or lost wages away from financial meltdown. Montana has had this law since 1987, and businesses are still there, the economy still functions and the state hasn't exploded, despite dire warnings from naysayers to the contrary.

Under Montana's Wrongful Discharge from Employment Act, MCA 39-2-901:

(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or
(c) the employer violated the express provisions of its own written personnel policy.
(2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.
(b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.

Pretty reasonable, huh? If New York and Philadelphia get the ball rolling, maybe other cities and states will follow. American workers deserve to have some stability and a regular income as long as they do their jobs.

Let's finally give notice that we're going to terminate at-will employment laws.

Cities Step Up Worker Protections - Has Yours?

The United States is way behind most other western nations in protecting its workers. While Congress has dropped into paralysis, U.S. cities have stepped in where Congress and the states have failed to protect working Americans. Florida is one of the most anti-employee states in the nation. The cities here could do much to help working people if they had the political will.

Here are some examples of how cities are stepping up to help workers:

Intern sexual harassment: New York City, along with Washington, D.C., Delaware, and Oregon, have laws against sexually harassing unpaid interns. There is not a single federal law banning intern sexual harassment. Title VII doesn’t cover it because they aren’t “employees.” Same with most state laws including Florida. So, yay for sexual harassers. High school and college students are fair game.

Paid sick leave: San Francisco, Oakland, Emeryville, Los Angeles, Berkeley and San Diego; Washington, D.C.; New York City; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; St. Paul, Minneapolis and Duluth); Newark, Jersey City, Irvington, Passaic, East Orange, Paterson, Trenton, Montclair, Bloomfield, New Brunswick, Elizabeth, Plainfield and Morristown; and Austin all have some form of paid sick leave. Eleven states including California provide some form of paid sick leave. Not Florida, of course.

Paid safe days: The cities that provide paid "safe" days, giving time for survivors of domestic violence, sexual assault, and stalking to seek services include: San Francisco, Emeryville, San Diego, Los Angeles, Berkeley and Santa Monica; Washington, D.C.; Seattle, Tacoma and Spokane; Philadelphia; Montgomery County (Md.); Chicago and Cook County; Minneapolis, St. Paul and Duluth; New Brunswick; and Austin.

Salary history: 13 states and 11 cities have banned employers from asking about salary history. The reason behind the legislation is that basing pay on prior salary can lock in pay discrimination. The sponsor of the Philadelphia ordinance explained: “Simply put, when a woman is paid less at the beginning of her career she will continue to earn less throughout her career. By eliminating the question of salary history we will be one step closer to decreasing the wage gap.”

Ban the box:  33 states and over 150 cities and counties have adopted “ban the box” laws. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Predictable schedules: San Francisco, Emeryville, San Jose, Chicago, New York, Seattle and Washington, D.C. have ordinances requiring that employers give specified advance notice of work schedules, advance notice of shift cancellations, and/or predictability pay for last minute cancellations. Oregon is the first state to enact such a law.

Paid family leave: 35 cities/counties and 11 states have paid parental leave laws.

Right to vacation: New York City would require most employers to offer 10 days of paid vacation to employees under this proposed ordinance

Firing for just cause: This proposed law would prevent employers in New York from firing on a whim.

Minimum wage: Florida’s legislature has prohibited local ordinances raising minimum wage, and that was just upheld. Sad. Many other cities around the nation have raised minimum wage for their workers.

Some cities that have led the way on employee rights are San Francisco, New York, A list of San Francisco’s very pro-employee ordinances is here. New York’s employee rights page is here.

So talk to your local elected officials about stepping up to help working people. If the state and federal governments won’t help workers, it will be up to the cities to protect them.

A Simple Solution To Unjust At-Will Laws

Most employers can fire you for any reason or no reason at all. As I say in my upcoming book, that means they can fire you because they didn’t like your shoes that day. Or, as it turns out, the color of your shirt.

The law definitely needs to change. This appalling situation could happen to anyone. In all but one state (Montana) you can be fired because your boss didn’t like your shirt or your shoes that day or because they’re in a bad mood. And in this country, unlike most civilized countries, our health insurance is tied to our jobs. So you can lose both your job and health insurance coverage for your family and yourself, all because your boss was in a bad mood.

Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause.

I would suggest that there’s a solution that might help alleviate some of the huge societal burden, as well as the burden on individuals, that is cause by the reality of at-will employment. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

Why should taxpayers have to pay because someone was in a bad mood and fired an employee? Why shouldn’t they have to pay for their own folly? If they don’t want to reinstate, then they can pay the employee’s full salary for the entire length of time they would have collected unemployment.

So, constant readers, tell me. Why won’t this work? Why shouldn’t we impose as much burden on employers who terminate without just cause as we impose on employees who are fired for misconduct?

If you like my solution, tell your state legislators and members of Congress. If you think I'm wrong, gripe away. I'd love to hear from you.

Occupy Your Workplace: Changes To Employment Laws That Would Make a Difference

Just like the Tea Party on the other side, the Occupy Wall Street movement is on the brink of having real political power. Everyone wants to know -- what do they want? What changes will they ask for? With unemployment still hovering at 9% and people scared they will lose their jobs for blinking wrong, America needs real changes to its employment laws. When I wrote my article, 10 Workplace Rights You Think You Have -- But Don't, many commenters were angry -- with me. They thought I must be wrong. I wasn't.

It's time workers started paying attention to the laws that protect them, and the laws that ought to. As a lawyer who has practiced employee-side employment law for over 25 years and who has seen how bad law can devastate hard-working Americans, here are some changes I'd suggest if I were advising the Occupy Wall Street movement.

Read more in The Huffington Post. I'd love to see your comments there.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!