Words: Paul Potts
Please note this article does not provide or attempt to provide advice or assistance to private citizens or businesses regarding employment law or related matters. Please consult your state department of labor, EEOC publications or a private attorney.
In employment law there are two broad categories of civil claims brought by employees against their employers (1) common-law claims over abuse of the at-will employment doctrine and (2) civil rights violations proceeding from the Commerce Clause and 13th and 14th amendments to the Constitution. While both categories of claims are related to abuse of power by employers, each arises from different common law or constitutional sources. The at-will employment doctrine is common law (not criminal law) and varies from state to state; but civil rights claims emerge from laws passed by Congress and are uniform for all 50 states. Employees pursuing claims over unlawful at-will dismissal must hire an attorney and pursue their case in common law court in their state. A civil rights claim, on the other hand, is pursued through the Federal Equal Employment Opportunity Commission (EEOC) or the Fair Employment Practices Agencies (FEPA) in their state. The EEOC will attempt to resolve the claim by alternative dispute resolution (ADR), and failing that, assist the employee in other strategies that will resolve the claim without going to court. If ADR is not satisfactory, the employee can end up suing in federal court.
At-Will Employment Category
At-will employment is one in which a nonunion employee without a written or oral contract can be discharged without notice or cause as long as the reason is not unlawful e.g. dismissal because the employee was missing work while performing jury duties, serving in the National Guard or acting as a whistle blower. At-will employment also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages or end benefits. “In its unadulterated form, the U.S. at-will doctrine leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedules depending on the employer’s needs, and unannounced cuts in pay and benefits”.1 All 50 U.S. states and Washington D.C. are at-will employment states.
“At-will employment remains controversial and is a central topic of debate in the study of law and economics, especially with regard to the macroeconomic efficiency of allowing employers to summarily and arbitrarily terminate employees.”2 Under the at-will employment doctrine the employee can also leave employment without notice or cause and still expect to collect back pay and accumulated benefits.
There are three exceptions to the common law doctrine of at-will employment. 1. Public Policy 2. Implied Contract and 3. Fair Dealing. For an example of public policy, the employer cannot fire an employee because they were performing a civic duty like jury duty. For a more informed explanation see “The employment-at-will doctrine: three major exceptions”, Dr. Charles J Muhl.3
The following is a quick view of the three exceptions discussed in Dr. Muhl’s article
A. Under the public-policy exception to the at-will doctrine, “an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the State. For example, in most States, an employer cannot terminate an employee for filing a workers’ compensation claim after being injured on the job, or for refusing to break the law at the request of the employer” or for being absent from employment while serving in the National Guard.
B. The Implied-Contract Exception to the employment at-will doctrine is applied when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists.
C. The Covenant-of-Good-Faith exception is recognized in only 11 states. The exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception— at its broadest—reads a covenant of good faith and fair dealing into every employment relationship whether written or not.
If the employee believes they have been unlawfully discharged from their employment and they intend to sue, it is recommended that the employee collect as much information as they are able without doing anything in retaliation or unlawful in the process and contact an employees’ rights lawyer.4
Civil Rights Category
The powers granted employers by the employment at-will doctrine are also limited by laws, which prevent employers from discharging or discriminating against employees for reasons protected by civil rights law. Modern civil rights protections for employees were legislated by the U.S. Congress during the Civil Rights Movement (roughly from 1954 to 1974) starting with the Civil Rights Act of 1957, which was signed by President Eisenhower.
Civil rights laws ensured constitutional rights for African Americans and other minorities that were first guaranteed by 14th and 15th Amendments to the U.S. Constitution following the Civil War. These amendments had never been fully enforced, except for a brief period of “Reconstruction” following the war. It was only after years of highly publicized civil rights demonstrations, marches, and violence that American political leaders acted to enforce them and created protections for other discriminated groups.5
Civil rights complaints are handled by the federal Equal Employment Opportunity Commission (EEOC). To start a civil rights action, the employee must contact an EEOC counselor prior to filing a formal complaint. If not discouraged by the consultation, the employee submits a handwritten or typed claim to the (EEOC). If the commission decides the employee has a valid claim, Alternative Dispute Resolution (ADR) will follow. If ADR is not successful (and ADR is more often successful than not) the employee can appeal to the EEOC or file a civil action in federal court. In rare cases, the EEOC will represent the employee. For more on the process of starting a civil rights claim see Federal EEOC Complaint Processing Procedure. https://www.eeoc.gov/eeoc/publications/fedprocess.cfm
Many states, counties, cities, and towns have their own civil rights laws prohibiting discrimination as well as an agency separate from the EEOC that is responsible for enforcing civil rights laws. State and local agencies are called Fair Employment Practices Agencies” (FEPA). If you file a charge with a state FEPA, it will automatically be “dual-filed” with EEOC if federal laws apply.6
During the civil rights era between 1957 and 1980, several acts protecting civil rights for employees were passed by the U.S. Congress. Each flow from authority granted to Congress by the Commerce Clause of the constitution and the 14th and 15th amendments (1868) to the constitution. Samples are presented below.
- The Civil Rights Act of 1957 was the first federal civil rights legislation passed by the United States Congress since the Civil Rights Act of 1875.7
- The Equal Pay Act of 1963 Requires employers to pay men and women the same wages if they perform equal work in the same workplace.
- Title VII of the Civil Rights Act of 1964 is federal law barring employers from discriminating against workers based on sex, race, religion, color, or national origin.8
- The Age Discrimination in Employment Act 1967 prohibits employers from discriminating against employees ages 40 or older based on their age.
- The Pregnancy Discrimination Act of 1978 prevents employers from discriminating against a woman because of pregnancy or a related condition.
- Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation and job training.
1. Labor Code section 2922 establishes the presumption that an employer may terminate its employees at will, for any or no reason. …. the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment. https://en.wikipedia.org/wiki/At-will employment
2. At-will employment remains controversial and is a central topic of debate in the study of law and economics, https://en.wikipedia.org/wiki/At-will_employment
3. The employment-at-will doctrine: three major exceptions, Charles J Muhl. https://www.bls.gov/opub/mlr/2001/01/art1full.pdf
4. Wrongful Termination Claims https://employment.findlaw.com/losing-a-job/wrongful-termination-claims.html
5. The civil rights era developed quite dramatically starting in December 1955 when a seamstress at the Montgomery Fair Department Store, Rosa Parks, refused to give up her seat on a bus to a white man. In the next year, a young African American boy from Chicago, visiting family in Money, Mississippi was brutally murdered by white men for allegedly flirting with a white woman. Later, northern college students rushed to join civil rights protests led by Martin Luther King and civil war broke out across the southern states. The civil rights turmoil was an undercurrent to grief when John F. Kennedy touring in an open car in a Dallas, Texas motorcade was assassinated. Kennedy had proposed Title VII of the Civil Rights Act of 1964 and fought hard to get it passed in Congress, but it did not pass before his assassination. Kennedy’s vice president, now President Lyndon Johnson, took up the mantle of Title VII and the Civil Rights Act became law in 1964 partly out of respect for the murdered Kennedy, but also due to the skillful management of the legislation in Congress by President Johnson.
6. Fair Employment Practices Agencies (FEPAs) https://www.eeoc.gov/employees/fepa.cfm
7. History Archives – U.S. House of Representatives https://history.house.gov/Historical-Highlights/1951-2000/The-Civil-Rights-Act-of-1957/
8. Title VII of the Civil Rights Act of 1964 https://www.ourdocuments.gov/doc.php?flash=false&doc=97