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Employees: Job Termination Rights FAQ |
Q: Are employees entitled to representation at employer-initiated investigatory meetings?
- A: Investigatory interviews can be perfectly legitimate and can include a wide variety of topics such as theft, accidents, damage to an employer's property, violation of safety rules, absenteeism, falsification of timecards and records, poor work performance, compliance/noncompliance with an employer's policies and procedures and so forth. You are correct, though, that sometimes they may be a prelude to disciplinary action and/or firing.
Do you have to go to the meeting? Yes. But if you reasonably believe that the meeting may result in discipline, you have the right to request the attendance of a representative.
The United States Supreme Court has held that an employee's request for representation during an investigatory interview in which the employee reasonably believes may result in discipline is considered a protected, concerted activity under Section 7 of the National Labor Relations Act. The right to representation, frequently referred to as "Weingarten rights," covers all employees with a few exceptions. Representation can be either through a union representative (if applicable) or a coworker.
Q: Are there ever any exceptions to being an employee at will?
- A: There are some exceptions to employment at will. These exceptions include such legal theories as implied contract, promissory estoppel, breach of covenant of good faith and fair dealing, and public policy.
Q: How much in unemployment benefits am I eligible for?
- A: The compensation you may be eligible for is determined at the state level through a combination of your last 12 months pay and the average weekly wage earned by all workers statewide. Benefits generally last 26 weeks and are available if you're actively looking for other employment.
Q: I think a former employer has blacklisted me. What can I do?
- A: Blacklisting has come to mean that an individual's name is included on a list of "undesirable" employees. This list is then distributed to other potential employers possibly within a geographic area or within a specific industry. Inclusion on the list is typically due to actions they did or perhaps did not take while employed which the former employer found unacceptable. State laws prohibit blacklisting. It can be difficult to prove the willful or malicious intent on the part of the former employee necessary to establish blacklisting. If proven, punitive damages may be awarded.
Q: I was recently fired from my job. I have never received any warnings and I have good performance reviews. Was this a wrongful termination?
Q: Is my employer required to give me a reason why I was fired?
Q: My employer has denied my unemployment benefits. Can he do that?
- A: Your employer doesn't have the power to deny your unemployment benefits, only to protest them. The state unemployment office makes the final decision. You have the right of appeal. So does your employer. Generally, you are eligible for unemployment compensation if you were dismissed for any reason other than "for cause." If you leave voluntarily, you aren't eligible unless you leave for "good cause," or what is commonly know as "constructive discharge."
Q: My employer says that he's not going to release my final paycheck until I turn in my equipment. Can he do that?
- A: Technically, no. But he's on stronger ground than he would be if you didn't have the company's equipment. Contact your state's Department of Labor for specific information, and, likely, return the equipment.
Q: What can my former employer say when giving a reference?
- A: Anything he wants, as long as it's factually true or the legitimately-held opinion of the reviewer. He cannot say that you were fired for stealing if you quit. But he can say that he was not satisfied with your work, if indeed he wasn't. The very large majority of employers don't give more than titles, dates of employment and rate of pay, because it's safer to say as little as possible.
Q: What does "at will" mean?
- A: An employee is employed at the will of the employer for as little or as long as the private employer wishes, and in whatever lawful capacity the employer requires. Likewise, the employee may choose to work at the employee's will for the length of time he or she desires.
An employer need not provide any reason for termination of an "at will" employee, so long as the termination isn't unlawful or discriminatory (based on age, sex, national origin and disability). Termination can be due to a merger, workforce reduction, change in company direction and business focus, poor company performance or other reasons.
Q: What is "constructive discharge?"
- A: If an employee feels that an employer has created intolerable working conditions and refuses to address the issues, resulting in the employee feeling forced to resign, the employee may be able to sue for constructive discharge and apply for unemployment benefits.
Q: What is "promissory estoppel" as it relates to at-will employment?
- A: One of the exceptions to at will employment is called "promissory estoppel." To show promissory estoppel, an employee must show:
- The employer made a clear and unambiguous promise
- You relied on the promise
- Your reliance was reasonable and foreseeable and
- You were injured as a result
The promise of continued employment for an employee must also be for a specific period of time.
These are generalized statements concerning the promissory estoppel exception. Determining whether a particular situation fits the promissory estoppel mold can only be determined by reviewing the specifics of a situation with an employment attorney.
Q: What is public policy as it relates to at will employment?
- A: Public policy is generally set by each state and relates to policy that is in the best interest of the general public to uphold. Under public policy theories, an employer can't fire an employee:
- Because he refuses to perform an act that state law prohibits
- For reporting a violation of the law
- For engaging in acts that public policy encourages (for example, not allowing leave for National Guard activities)
- For exercising a statutory right (as where an injured worker files a claim under the state worker's compensation law and the employer fires him)
Q: What kind of employment rights does a probationary employee have during his or her probationary period?
- A: Not many. The very term indicates that the employee must successfully pass the trial, or probationary, period of employment to earn the rights held by non-probationary employees.
Probationary employees can normally be discharged at any time within the probationary period with no right to appeal the termination. Normally there isn't entitlement to continued employment, even in the civil service arena. So with no entitlement to continued employment, the probationary employee would have none of the due process rights given to permanent civil service employees with an entitlement to continued employment.
Q: When must my employer give me my final paycheck?
- A: That depends on your state's law, and in some states whether your leaving is voluntary or involuntary. Generally, you must receive your check on your last day or on the next regular payday. Check with your state's Department of Labor for specific guidelines.
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