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from ACLU gopher, 5/31/94
American Civil Liberties Union Briefer
Dorothy Jamison was fired from the job she had held for ten years as a supervisor in a Philadelphia nursing home after she called her employer two hours late to say that she could not come to work because her brother, with whom she lived, had just died. Other employees have been fired so the employer could avoid paying contractually earned commissions; for protesting the concentration of carcinogenic saccharin in children's aspirin; for refusing to vote as their employer wished, and for a host of other unjust reasons.
Most Americans believe that they can be fired only for a legitimate reason. Unfortunately, this is not the case. Under an archaic 19th century doctrine called "employment at will," employers have the right to fire their employees at will at any time, for any reason or for no reason at all. While courts have recently created some narrow exceptions to this unfair doctrine, it is basically still operative.
Employers have not been reluctant to exercise their unqualified right to fire employees. Therefore, employees who are not covered by collective bargaining agreements or other employment contracts are never secure in their jobs and can be dismissed without prior warning, no matter how satisfactory their job performance might be.
The American Civil Liberties Union believes that working people should be protected against arbitrary firings, and that they should only be fired for just cause.
*** How widespread is the problem of unjust firings? The U.S. Bureau of Labor Statistics has estimated that, of the approximately 80 million Americans employed in the private sector of the nation's economy, 60 million are employed "at will." Two million at-will employees are fired every year, and it is estimated that about ten percent of those -- at least 150,000 workers -- are fired for no legitimate reason.
*** Why is this a civil liberties issue? Free expression, equal protection, and due process are rights guaranteed to all Americans by the First and Fourteenth Amendments to the United States Constitution. Although the Constitution restrains governmental employers from violating those rights, it does not restrain private employers. Yet the impact on the lives of workers and their families of such unfair practices as arbitrary firings is just as devastating when the employer is private, even though the private employer's actions do not violate the Constitution.
The ACLU opposes any corporate practice that arbitrarily deprives workers of their basic rights.
*** What can be done to stop unjust firings?
The ACLU has proposed state and federal legislation that would prohibit employers from terminating an employee without just cause, which means: Dismissal would only be justified if the employee's conduct impaired his or her job performance in a significant way; the employee's offense violated a rule known to the employee, and the offense was serious enought to warrant termination. Employers would still be free to fire incompetent workers, to abolish obsolete positions or to dismiss workers because of business downturns.
Fired employees who felt wronged would be able to challenge their employer's action before a panel of impartial arbitrators, who would have the authority to require an employee's reinstatement with back pay if they found a firing to be unjust. Employees would also have the option of choosing court litigation.
*** Is arbitration better than litigation?
Definitely. On average, litigation is a years-long, extremely costly process -- it can cost as much as $250,000. Arbitration is a faster and cheaper alternative by far, with arbitrators taking, on average, only six months or less to render a decision, at a cost of approximately $2,500. Members of the American Arbitration Association and other similar organizations form a national corps of neutral labor arbitrators. They have extensive expertise in conducting fair hearings and process thousands of cases each year.
*** Does union membership protect workers from unjust firings?
Yes. Collective bargaining agreements between labor unions and employers provide that union employees can be fired only for just cause, and only after a hearing by a neutral arbitrator. However, less than 20 percent of American workers belong to unions today. The ACLU statute would extend to non-union employees the same protection afforded union employees by the arbitration clauses in collective bargaining agreements.
*** Aren't there already federal laws that protect the rights of workers?
Yes, a number of federal and state laws protect *some* rights of *some* American workers. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, sex, religion or national origin. The Federal Age Discrimination in Employment Act protects employees against discrimination based on age, the Americans With Disabilities Act protects disabled persons against discrimination and the National Labor Relations Act protects workers' rights to join together and protest working conditions, or to form labor unions.
*** Would compliance with an unjust discharge law be too burdensome for employers, and if so wouldn't the profits and competitiveness of American companies be adversely affected?
Some members of the business community fear that enactment of an unjust discharge law would disrupt business operations. Legions of employees, they say, would challenge their dismissals, resulting in reduced productivity, competitiveness and profits. Some employers, however, including some of the nation's most successful corporations, have voluntarily adopted just cause standards with no adverse effects to their businesses. These employers believe that treating employees with respect boosts morale and productivity and, thus, enhances profits. And virtually all of the world's industrialized nations -- including Germany and Japan, our staunchest competitors -- have laws that require private employer to adhere to just cause standards in dismissing employees. Clearly, the interests of both labor and management are best served by fair employment practices.
*** Doesn't unemployment insurance adequately compensate workers who lose their jobs?
No, unemployment compensation falls far short of meeting the needs of workers who lose their jobs. For example, unemployment benefits have a ceiling that varies from state to state; the payments amount to significantly less than the lost wages, and the payments are of limited duration. Although many people find new employment before their unemployment compensation ends, their loss of seniority and the benefits that accompany long-term employment is unrecoverable. Moreover, unemployment compensation does not address the issue of fairness with respect to arbitrary firings.
*** Wouldn't an unjust discharge law create a statutory right to a job?
No. The ACLU model statute does not require private industry -- or the government -- to create jobs. It does not require employers to hire unqualified persons, to keep incompetents on their payroll or to maintain obsolete positions in order to save jobs. The purpose of the ACLU statute is simply to establish a just cause standard for job firings and to recognize, where collective bargaining agreements are absent, dismissed employees' right to due process. Passage of this legislation would have no impact at all on the business operations of employers whose workplace practices are already fair and just.
*** Would this statute prohibit employers from laying off workers or closing plants for economic reasons?
No. The ACLU statute specifically excludes economic terminations from the definition of discharge.
*** In the past, unfairly treated workers have sued their employers, claiming personal injury or breach of contract. Why aren't these traditional avenues of relief enough?
Ideally, private sector workers who believe they have been discharged unjustly should have access to, and be able to afford, a jury trial and the full range of remedies provided by law. These would include, where appropriate, compensatory and punitive damages. The reality, however, is that at present more than 95 percent of such employees *get no relief at all*. If enacted, the ACLU statute would ensure that fired private sector workers have the right appeal the loss of their jobs to a neutral arbitrator and, if they win, to receive an award of back pay, reinstatement and restoration of benefits. This is not a perfect solution, but it would be far better than what we have now.
Produced by The Natl Task Force on Civil Liberties in the Workplace American Civil Liberties Union Department of Public Education 132 West 43rd Street New York, NY 10036
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