Blaming the Trial Lawyers

This  syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The cartoon above erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.

Take This Job and . . .

Not all oldies are goodies. But it does show us the employee side of employment-at-will.

Employment -at-Will on Crack!

There have been plenty of posts in this blog with examples of dodgy firings. Pretty much all of them are allowed under the employment-at-will doctrine. But here is an article with the accurately descriptive headline, "A Woman Told Her Boss About A Devastating Cancer Diagnosis.He Responded By Firing Her." Read it for yourself and fashion your lesson plan on employment law, ethics, employer responsibility, employee vulnerability, ADA (and when it does not apply) or humanity as the case may be.

This is not an isolated case:

Can You Be Canned For Trying to Stay Alive? Shared by Konrad S. Lee

Thanks goes out to Konrad S. Lee, Associate Professor in the Practice of Law, Ethics and Management at Jon M. Huntsman School of Business at Utah State University for submitted this resource for the discussion of public policy exceptions to the employment-at-will doctrine.

Under the common law doctrine of employment-at-will, in the absence of an employment contract stating otherwise, an employee may be dismissed at any time, with cause, for no cause and even in many cases for a cause that seems unfair. here are certain exceptions to the rule.  For instance, there are statutory exceptions for discriminatory discharges based on protected characteristics or retaliation for whistle-blowing, The NLRA prevents discharges from employment for union activities.  Most states also recognize some level of common law exceptions.  the most common being a public policy exception.  That is, when the employment discharge interferes with or discourages some activity that is otherwise beneficial for society, the discharge may be deemed wrongful.

With this background comes the incident described in this news report from KSL.com.

A video posted to YouTube showed (ex WalMart employee Gabriel) Stewart, then an assistant manager, and several "asset protection" employees inside a small room with a man suspected of shoplifting. The suspect, at one point, pulled out a handgun, prompting at least two workers to restrain him, and take away the weapon. 

The workers were fired by WalMart following the incident and have filed suit claimimg wrongful termination. 

"Our number one concern is always the safety of our customers and associates," said Randy Hargrove, Walmart corporate spokesman. "Our policy is for associates to disengage, if a suspect has a weapon. . . ."We don't want to escalate a dangerous situation further," said Hargrove.  

So WalMart would have their employees "disengage" with an armed and angry suspect and face likely death rather than defend themselves by taking the instinctive action to overpower the gunman. Watch the video below and decide for yourself. Should you be fired for trying to stay alive?  

Is it too cynical to speculate whether WalMart carried "Dead Peasant" policies on these associates?

Video news report:

Raw surveillance video:

Fired For Observing Patriotic Flag Protocol

Federal Law states:

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. 

4 U.S.C. section 8.

Rick Heilman, a 22 year Navy veteran, noticed the National flag flying outside his work place was tattered.  He asked his manager if he could take the flag down until a replacement was obtained.  He was twice told, "no."  After thinking about it over the weekend, he returned to work on Monday and took down the flag. Whereupon, he was fired for insubordination.

According to the news report:

Yearwood Equipment Company’s management would not speak on camera, but did reiterate that Heilman was not fired for replacing the flag. 

Right! He was NOT fired for replacing the flag. He was fired for replacing the flag after his boss told him not to, even though replacing the flag was the right thing to do.

Is it tuh-MAY-toe or toe-MAH-toe?

Of course, the employment-at-will doctrine protects the employer, allowing employee dismissal for good reason, for no reason and even for a bad reason.  Some states recognize public policy exceptions to employment at will for employees who are fired for engaging in an important public activity. North Carolina law ought to recognize that displaying proper respect for the national flag trumps the superficial bruising of a boss's ego.

Your Kid Has a Snow Day? You're Fired!

The article here recounts this story. The thrust of the article is that the Family and Medical Leave Act (FMLA) needs to be amended to protect workers in this situation.  The article doesn't even mention the employment-at-will doctrine which justifies employee dismissals for any reason or no reason.  The FMLA only applies to employers with 50 or more employees. EAW applies to everyone. The point of advocacy here should be to advocate for emergency child care as an important public obligation within the exceptions to the EAW doctrine.

FMLA basics:



US one of the worst in the developed world when it comes to supporting pregnant women:

Employment at Will in NC

Click on the image below to access a video explanation of employment at will.

Employment Law Basics: Employment-at-Will

This video is simple, but it says it - introducing the concept of employment-at-will.

The Joke is On . . . ?

There are a multitude of lessons growing out of this story.  A female software developer attending a  conference was offended by sexist jokes told by the men sitting behind her.  She took a cell phone photo of the men, although she could not identify exactly who was speaking and who was listening.  Then she posted the photo with the allegation of the sexist joke-making on social media.

She was fired by her employer.
[The employer] said [the employee] put the company's business in danger, divided the developer community and could no longer be effective at the company.

One of the men in the picture was also fired by his employer.
"PlayHaven had an employee who was identified as making inappropriate comments at PyCon, and as a company that is dedicated to gender equality and values honourable behavior, we conducted a thorough investigation. The result of this investigation led to the unfortunate outcome of having to let this employee go," PlayHaven CEO Andy Yang said in a blog posting.

Take your pick among the lessons to develop from this scenario.  Were the employee dismissals legal under employment-at-will principles?. Was the posting of the photo and "shaming" of the men defamatory?  What if one of the men pictured was merely a bystander? Did her employer do the right thing (ethically and/or strategically) in dismissing her?  Did PlayHaven act ethically/properly in dismissing their employee?  Does the ease of access to a worldwide audience impose different legal/ethical considerations on those publicly reporting on the acts of other? Was the public reporting an invasion of privacy (was there a privacy interest)? Etc...

Here's a video about the incident that is WAY more hip than any of my posts could ever hope to be:

Pratt & Whitney Blows Whistle on Pratt & Whitney

Aircraft parts company Pratt & Whitney, a subsidiary of United Technologies, has disclosed that an Israeli  division of the company has for years been falsifying the results of parts inspections. The disclosure obviously exposes the company to potential civil liability but may be effective in avoiding any criminal prosecution. In accordance with the publicly released 2003 Justice Department "Thompson" memo on the prosecution of Business Organizations, corporations that effectively self-police wrongdoing may encourage prosecutorial discretion in favor of leniency. If that is the case, then perhaps the memo's release has had a positive impact toward reducing corporate crime.

PDF link to Thompson memo

The Harlem Shake Pink Slip

My fear of LSCB being left out of the Harlem Shake craze has finally been alleviated thanks to Barminco, an Australian mining company.  According to news reports, Barminco fired 15 mine workers for filming and posting a video of the employees performing the Harlem Shake at a mining site.  Several of those fired, merely watched the performance. The workers have allegedly been banned from working at any Barminco site, worldwide. No one has ever suggested that corporate managers possess a sense of humor (except, maybe, for Andrew Mason). If you ask me, I think Barminco should have embraced the video as evidence of how much fun it can be to work in a dark dank hole thousands of feet below the surface of the planet.  But then, no one ever asks me.

What is the Harlem Shake? Read here.  WARNING! Many of the Harlem Shake videos can be risque.  Always preview anything that you show in class.

Watch here (not risque):


 Barminco miners apparently compromising the safety of Barminco's operations:

It's About Freedom...

Waterbury Hospital in Connecticut has suspended 100 workers for two weeks in preparation for their dismissal for failure to be vaccinated against the flu. Workers who are refusing to be vaccinated are not raising a religious objection (implicating Title VII protections) and they are not claiming a likelihood of harm (potentially implicating a public policy exception to employment-at-will).  Instead, they claim "Freedom" and the "Founding Fathers." Unfortunately, one of the most durable of America's freedoms is that of an employer to dismiss employees at will.  The law has changed little since 1884:

All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.

                - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).

This is not a case of the government saying "flu shot or jail." Employees are not facing vaccination under penalty of government sanction. They have a choice: get the vaccine and work at the hospital or don't get the vaccine and work elsewhere. The Union is claiming a violation of Federal labor Law.  Given the strong preference in American law for that uniquely American concept of employment-at-will, I give the nod to the hospital.

Employment-At-Will: Fired For Wearing Orange?

Here in Connecticut during March Madness I can understand someone being fired for wearing the school colors of a fierce basketball rival from Central New York ... but in Florida? Isn't orange the color of the Gators? A law firm in Florida fired 14 support workers supposedly because management saw their orange wearing as a sign of some sort of solidarity statement. I suppose this wouldn't be the first group of lawyers suffering from paranoia.  Was this a day-before-St.-Patrick's-Day pro-Protestant/anti-Catholic statement on Irish heritage? Maybe the lawyers are all Florida State fans?  It doesn't matter either way from a legal standpoint. They are employees at will and, therefore, may be legally dismissed for cause, for no cause or even for a reason for which people shouldn't get fired (unless dismissal is prohibited by a statute or specific public policy).

See: Fired For Choice of Necktie

They wear orange on Fridays at OSU! I hope no one works for a law firm.

Featured Case: Bigelow v. Bullard - Legally Fired for Racial Tolerance

The Nevada Supreme Court decision in Bigelow v. Bullard  may be used to illustrate two important concepts in a Legal Environment course. Michael Bullard was an employee of Bigelow Holding Company.  According to the court's decision:

It could be inferred from the evidence in this case that the Bigelow company had in fact adopted a rental policy of discriminating against African-Americans. It has been claimed that agents of Bigelow were instructed to use deception and subterfuge to prevent African-Americans from becoming tenants in Bigelow rentals.

Testimony of the plaintiff Bullard revealed the following incident:

Q. How were you terminated? A. We had three black males came [sic] on the property. Carol Swenson radioed Donna Dollman [sic] on her radio — ... I told Carol that blacks had rights, too. Approximately five to ten minutes passed. Donna came into the office. Carol and Donna conversed. I don't know what they said. Donna walks up to where I'm sitting, picks up the piece of paper that I'm writing on, and she said, "What's your f--king problem?" I said, "I don't have a problem." She said, "I think you do." She said, "I think you're a f--king ni--er lover. Sit your God damn ass down on that f--king stool, shut your mouth, and do your f--king work." Q. What happened next? A. Then she said, "On second thought, get your f--king ass out of here. I don't want you working for me anymore." Q. And what was the time span between those two statements by Mrs. Dollman [sic]? A. Not even 30 seconds. Q. Why did you make the statement, "Blacks have rights, too"? A. Because I knew that they were fixing to physically assault the black males to get them off the property. 1. Wrongful Termination:  Bullard claimed that his discharge should be deemed wrongful under the public policy exception to the employment-at-will rule. The court disagreed, overturning a jury award of compensatory and punitive damages: In sum, then, we do not deem it to be consistent with the employment law of this state to hold that an employee's merely expressing to a fellow employee or some third person disapproval of or "objection" to company policy that is claimed to be contrary to pubic policy (as distinguished from refusal to carry out that policy) can be the predicate for a tortious discharge action. Dallman fired Bullard not for what he did (such as refusing to carry out ugly and unlawful racist policies for the company or even for "objecting" to such policies) but rather, at worst, for what, in her mind, Bullard was, namely a person she deemed to be unworthy of further employment because of an expressed sympathy for black tenants. Dallman had, under our at-will employment law, the right to fire Bullard because she did not like people like him, people who are sympathetic to African-Americans. She had the right to fire him for any reason. 2. Stare Decisis: The court considered a precedent (Western States v. Jones) that recognized a public policy exception to at-will- employment. In that case, an employee who had recently undergone surgery and returned to work with a bandaged surgical wound was fired after he refused to follow his employers direction to enter an area where hazardous fumes had been released. The court distinguished Bullard's case on the facts, since Bullard had not refused an order from his employer, but rather, had merely expressed his opinion. The court's opinion may be characterized as a choice to read the public policy exception narrowly. Had the court been inclined otherwise, the  Western States case could have been used as precedent to support the finding of a broader public policy exception. Merely having a precedent did not require the court to  find either for or against Bullard. Interpretation of law can be, ultimately, a matter of choice. The dissenting opinion relies on persuasive precedent from California. CASE NOTE: Public Policy and Wrongful Discharge: The Continuing Tragedy of Bigelow v. Bullard The case was also featured in Ruth Colker's, American Law in the Age of Hypercapitalism; The Worker, The Family and the State - a highly recommended read. Robert Bigelow, Defendant:

image source: http://materialintangible.blogspot.com/2011/09/robert-bigelow-wings-over-worldand.html

Law Lessong - Employment-at-Will

The next installment in the “Law Lessong” series is Employment -at-Will Song.  This simple video and song from a Power Point presentation helps students consider the issues of the Common Law doctrine of employment-at-will. Reference is made to the limited whistleblower protection under the Common Law  and the public policy exception to Employment-at-Will.

Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

The Flip Side of Employment-At-Will

Here is an iteration of the law of employment-at-will doctrine:

All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.

                - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).

The flip side, of course, is that employees may quit without reason or notice. Hence, the policy of maintaining freedom of ingress and egress in the labor market is protected.

From the movie Waiting, "I quit." (Click on picture to go to video)


Longer Version: (Click on picture to go to video)



Take This Job and Shove It:

Facebook Photo Facilitates Firing

Despite the best efforts of faculty, career centers, news media, parents and peers to educate college students about the ramifications of internet postings and images, students still seem to be surprised to learn that there are real life repercussions to their social networking behavior. Specifically, when your boss sees the drunken, inappropriate, embarrassing, photo of you that your friend uploaded to his facebook page, don't be surprised if you are asked to clean out your desk and are escorted out of the building by security. And those images may show up in internet searches for decades - affecting all your future job searches as well. There is an international legal debate going on over the "right to be forgotten."  Can search engine companies be ordered to prevent access to older posts in order to allow records of youthful indiscretion to fade?  I think that is a difficult argument to win.

Employment-at-Will: Fired for Choice of Necktie

A Chicago area car salseman was fired from his job for wearing a Green Bay Packers tie (at least that is the sensational headline). Of course, there is always more to the story. But at least now I have a new example to use in class.  I usually say, "The boss can fire you if she doesn't like your shoes."

It looks like the car salesman is going to land on his feet. Another dealership has offered him a job and Packer fans are already calling to buy cars from him.