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Many HR pros are surprised to learn that legal protection from retaliation isn’t always guaranteed for them.
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Protected Behaviors at the State Level
The common-law concept of “at-will” employment gives employers broad authority to terminate employees for virtually any reason, but federal and state laws carve out important exceptions that, if violated, can lead to a court date.
“The at-will doctrine is alive and well everywhere,” says Peter Petesch, an employment attorney in the Washington, D.C., office of Atlanta-based law firm Ford & Harrison LLP.
Almost every state recognizes at-will employment. Only one state, Montana, sets a higher standard by requiring employers to have a “reasonable cause” for termination.
Even so, says Petesch, the at-will doctrine is not absolute. In fact, it has “been eroded in some places,” he says. Most states and dozens of municipalities have laws that ban discrimination, and many offer greater protection than federal law.
In addition, 29 states and the District of Columbia restrict employers’ ability to fire employees for various forms of off-duty conduct. The most common state statutes protect employees’ right to use tobacco products. Some states extend the protection to alcohol use, too. Rarest are laws found in four states that protect all legal activities away from the employer’s premises.
Employers must do their homework to ensure that planned terminations do not violate any of these myriad laws.
“You really need to check the state law, the Constitution and the case law to see if the termination is lawful,” says Camille A. Olson, SPHR, who chairs the labor and employment practice of Seyfarth Shaw in Chicago.
“The advice I give is don’t stick your nose in off-duty conduct,” says Wayne L. Hersh, a partner at Berger Kahn in Irvine, Calif. “All you do is make [employees] mad and think they have a lawsuit against you.”
When ex-employees do go to court, they usually lose, Petesch notes: “The facts may be compelling, but the firings are not illegal.”
(See Map, "Off-Duty Protection.")
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