When You Can’t Fire Employees at Will

At-will employment does have limitations when it comes to terminating employees. Read on below for some things to keep in mind before you fire someone.

Employment at will—the right to terminate a work relationship for any reason or no reason at all—is a state law concept structured to give both businesses and workers flexibility and mobility. For employers, employment at will obviously provides great latitude concerning staff management and it can help facilitate decisions related to seasonal and holiday workers, outsourcing, probationary periods, and policy effectiveness. Forty-nine states recognize employment at will as the default employment relationship (Montana being the exception).

But employment at will is not an employer’s carte blanche and the doctrine does have its limitations. While an employer need not necessarily give a reason for terminating an employee at will, if a reason is given, it must be a permissible one. Even when no reason is given, the circumstances of the termination might imply an impermissible motive underlying the termination. Further still, the relationship between the employer and employee may evolve over time to imply something more than at-will status.

Employers should always pause and assess the situation before opting for termination.

Personal characteristics and immigration status

Anti-discrimination laws, spearheaded by Title VII of the Civil Rights Act of 1964, prohibit workplace discrimination based on race, gender, national origin, or religion. Other state and federal laws have expanded anti-discrimination protections to age, sexual orientation, pregnant females, and new mothers.

It is permissible to refuse employment or terminate an existing employee if their immigration status prohibits them from working; however, federal statutes like the Immigration Reform and Control Act (IRCA) prohibit hiring and firing decisions made based on legal alien status.

Pretextual termination

A perfectly legal basis for termination might later be perceived or characterized as pretextual for something more insidious, potentially making the circumstances surrounding a termination relevant to a wrongful termination lawsuit. Common examples of pretextual termination include releasing an employee before he or she qualifies for retirement benefits, or coercing an employee’s departure through uncomfortable or inhospitable work conditions in order to avoid paying severance.

Not cooperating with company investigations

Generally, employees might refuse to cooperate with a company investigation—a property search or drug test, for example. It is also generally alright for a company to respond to such refusal with a termination letter. But there are situations where non-cooperation is not proper grounds for terminating an employee at will. The federal Employee Polygraph Protection Act, for example, prevents termination for refusal to take a lie detector test.

 First Amendment rights

While the First Amendment to the U.S. Constitution broadly protects freedom of speech, the Constitution generally regulates only government activities and its application to private employers is therefore limited. However, some types of speech, such as politically expressive speech, operate in a gray area. While several states have extended protection for political speech to private employees, Ohio is not among them.

Other speech, such as discussions about workplace conditions and acts contrary to public policy, remain in the sphere of protection. Let’s delve into them.

Politics affecting workplace conditions

The National Labor Relations Act prohibits employers from banning discussions about workplace conditions, including how the political climate or the outcome of a particular election might impact the workplace. By logical extension, employers also cannot fire terminate employees for such discussions.

Under the U.S. Supreme Court’s infamous decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), which held that corporations have a right to make independent political expenditures under the First Amendment, employers can communicate directly to employees about elections, encourage them to vote for certain candidates, and, in many states, even compel them to do political work or attend political gatherings during work hours and for compensation.

In a legislative parallel, the Civil Service Reform Act of 1978 prohibits discrimination (up to and including termination) of a public employee for his or her political affiliation. This protection has not found widespread purchase in the private sector. Ohio has no such employee protections, but it does require employers to allow for “reasonable” time off to vote at the polls. See R.C. 3599.06.  

Retaliation

Employers cannot terminate employees simply for attempting to defend or assert their rights. For example, consider an employee who files a good faith lawsuit for workplace discrimination; the employer cannot terminate the employee out of hand just for bringing the lawsuit. A court could find that such a termination was retaliatory.

Another point of retaliation might be an employee challenging the business on public policy grounds. Public policy is an amorphous talking point in the law, but in our context the heart of it is to encourage acts that the public would view as morally or ethically positive and discourage those which are not. An employee’s refusal to commit an illegal act, reporting an employer’s illegal act (i.e., whistleblowing), or exercising a legal right (e.g., voting) are all favored by public policy and may not be used as a basis for termination.

Implied contracts

Sometimes, an implied contract can arise from an employment at will relationship. Such an implied contract could arise from representations by the employer that suggest job security to the employee. Courts will often carve out or limit an employer’s otherwise blanket right to terminate based on these kinds of representations. In some states, even at-will policies in employee handbooks can be amended or nullified by an employer’s subsequent representations and assurances. See, e.g., Wilson v. General Motors Corp., 454 N.W. 2d 405 (Mich Ct. App. 1990).

Most of the prohibitions on termination that we’ve discussed require the employer to take some conscious (often contentious) action. An implied contract, though, can form from the most innocuous of conversations. Hence, employers should be careful about representations made to employees in any circumstance.

Max Julian is an attorney at The Gertsburg Law Firm. Julian’s practice is focused on commercial litigation. He can be reached at mj@gertsburglaw.com or by phone at (440) 571-7541.


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  • Next up: Five Tips to Help Reduce Digital Eye Strain
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  • Five Tips to Help Reduce Digital Eye Strain

    The eyes have it. Digital eye strain, that is. With many of us working remotely, our screens help us get the job done but can also cause eye exhaustion. The good news is here are 5 easy tips to help keep your eyes healthy and reduce eye fatigue.

     

    How many hours a day do you spend staring at a screen? An hour? Three to four hours? More? According to recent findings from The Vision Council, 60% of Americans spend five or more hours a day with their eyes fixed on a smartphone, tablet, or computer screen*. 

    And why wouldn’t they? Today’s world runs on digital. Mobile devices and computers deliver countless benefits to help us do our jobs, stay informed and connected. However, they can also serve up a less beneficial side effect – digital eye strain.

    Many digital devices and computer monitors emit blue light, and blue light exposure can contribute to digital eye strain. Here’s why: After blue light enters your eyes it scatters. Your eyes then work extra hard to focus that scattered light. In other words, your eyes are putting in overtime on a daily basis, which can contribute to repetitive eye strain and associated headaches, blurred vision, and dry eyes.
     
    Consider the following five ways to reduce your blue light exposure and decrease the potential onset of digital eye strain.

    1. Ask the expert (your eye doctor!)
    An annual trip to the eye doctor is critical for the entire family (especially children). Ask your VSP network eye doctor about the best options to help you or your children reduce eye strain, whether that’s in the form of computer vision or blue light lenses. Specialty Anti-Reflective coatings can help combat digital eye strain by reducing your exposure to blue light from digital devices and lighting. Even if you don’t wear corrective lenses, some blue light coatings can be applied to non-prescription eyewear. 

    2. Observe the 20-20-20 rule
    Give your eyes a break every 20 minutes and spend 20 seconds looking at something at least 20 feet away. Also, blinking more often helps to moisten your eyes, which may help reduce visual discomfort.

    3. Maintain your digital distance
    Find a comfortable working distance from your screen. This is especially important for children since the intensity of light increases exponentially the closer our eyes are to the source. Children should hold devices as far away from their eyes as is comfortable. Adults are encouraged to hold devices at arm’s length.

    4. Dim the lights
    Turn down the brightness level of device screens to reduce the amount of blue light exposure, especially during the evening hours. Additionally, as LED and CFL lighting also emit blue light, it would be a good idea to dim those at home or work if possible.

    5. There’s an app for that
    A number of apps are also available to help reduce blue light emission from devices.

    * The Vision Council, EYES OVEREXPOSED: The Digital Dilemma, 2016, PDF 

    Information received through VSP Vision Care channels is for informational purposes only and does not constitute medical advice, medical recommendations, diagnosis or treatment. Always seek the advice of your eye doctor, physician or other qualified health provider with any questions you may have regarding a medical condition.

    See Well. Be Well.™ Make your eye health and eye care a priority. If you haven’t already, take advantage of your COSE member benefit and opt-in to VSP vision insurance. Contact your COSE sales representative or broker for more info.

     
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  • Next up: Five Tips to Improve Your Heart Health
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  • Five Tips to Improve Your Heart Health

     

    Your heart is made up of muscle, blood vessels and valves that work together to pump blood to all areas of your body. Two common risk factors for your heart health are high blood pressure and high cholesterol. Both of these conditions can cause damage to your heart, which can lead to serious health issues like a heart attack or stroke.

    So how can you combat heart disease? See the tips below to work on creating a healthier you.

    1.       Get physical

    Living an active lifestyle is a key component to heart health. Staying active helps you maintain a healthy weight, which aids in the prevention of high blood pressure, type 2 diabetes and high cholesterol. Physical activity also improves blood flow throughout the body and supports your immune system. By aiming for 30 to 60 minutes of activity a day, you can easily reduce your chances of heart disease.

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    Another way to prevent heart disease and manage your weight is by eating a heart-healthy diet. Include plenty of fruits, vegetables, beans/legumes, whole grains, low sodium foods and low-fat dairy products in your diet. These foods provide vitamins and minerals to your body, while foods that contain high amounts of saturated fats, trans fats, sugar and salt put you at risk of developing clogged arteries that can lead to a heart attack. 

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    The only way to know for sure if you are in danger of heart disease is by getting regular health screenings. Tests that can indicate risk of heart disease include blood pressure screenings, type 2 diabetes screenings or a lipid panel. By knowing your numbers, you can take the first step to improving your overall health.

    4.       Say no to nicotine

    Nicotine increases your blood pressure and contributes to the hardening of the artery walls, increasing your risk for heart attacks. Cigarette smoke specifically limits the amount of oxygen in your blood, therefore causing your heart to work even harder to supply enough oxygen to the body. Even if you aren’t a smoker, be sure to steer clear of secondhand smoke.

    5.       Don’t sweat the small stuff

    Constant stress may increase your tendency to turn to harmful behaviors that raise your blood pressure such as heavy eating, drinking alcohol or smoking. If you experience stress for long periods of time, talk to your doctor about stress management and seek out healthy alternatives to these behaviors.

     

    For more information, please talk to your doctor. If you are a COSE MEWA member through Medical Mutual, use our provider search tool to get started. To learn more about the wellness benefits offered through a COSE MEWA health plan, please contact your broker or your Medical Mutual Sales representative.

     

    Sources: Mayo Clinic, American Heart Association, Centers for Disease Control, American Medical Association

     

    The material provided is for your information only. It does not take the place of your doctor’s advice, diagnosis or treatment. You should make decisions about your care with your doctor. What is covered by your health insurance will be based on your specific benefit plan.

     

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  • Next up: Five Ways to Get More from Your Vision Benefits
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  • Five Ways to Get More from Your Vision Benefits

    Who doesn’t want to get the most out of their vision benefits? Courtesy of our partners at VSP® Vision Care, here are five ways you and your employees can easily maximize your vision plan.

     

    A Vision plan is an important part of an employee’s benefits package. Just having benefits is good but enjoying low out of pocket costs is great! Make sure you and your employees are getting the most out of your vision plan by following the five tips below. 

    How to maximize your vision benefits:

    1. Know what your plan covers
    For example, if you’re enrolled in VSP, you can go to vsp.com, create an account and see your detailed benefit information. Easily find information like co-pays, frame allowance, extra savings and lens enhancement coverage. 

    2. Find a conveniently located in-network eye doctor
    You’ll get the most out of your benefits and save more when you visit a VSP network provider. Plus you can get additional member savings and bonus offers when you choose a doctor who participates in the VSP Premier Program

    If you already have an eye doctor, verify that they’re in-network so you don’t miss out on significant savings. Some places say they “accept” VSP, only to offer a limited discount or out-of-network benefits and that can mean you’ll pay a lot more out of your pocket.

    3. Choose from a wide selection of stylish frames and lenses
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    You can also get more bang for your buck by checking out special offers on featured frame brands and popular lens enhancements like anti-reflective coatings, progressives, and light-reactive (photochromic) lenses.

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    *Available only to VSP members with applicable plan benefits. Frame brands subject to change.
    **Savings based on doctor’s retail price and vary by plan and purchase selection; average savings determined after benefits are applied. Available only through VSP network doctors to VSP members with applicable plan benefits. Ask your VSP network doctor for details.

    Make vision health a priority, starting with scheduling a comprehensive eye exam. If you haven’t already, take advantage of your COSE member benefit and opt-in to VSP vision insurance. Contact your COSE sales representative or broker for more info.

     
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  • Next up: Gen Z: 7 Must-Have Characteristics They Want in a Job
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  • Gen Z: 7 Must-Have Characteristics They Want in a Job

    In just a couple short years, Generation Z is expected to comprise a fifth of the workforce. If you want to successfully attract this talent, make sure you tailor your positions to the following seven characteristics this generation wants in a job.

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    Growth opportunities

    Generation Z plans to change companies no more than four times in their career. Thus, it is important to them to work for a company who offers growth opportunities. From the initial interview through annual performance reviews and everything in between, this generation will be challenging their managers to show them a path. They will want to understand what opportunities are present both inside and outside of the company.

    Generous pay

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    Making a positive impact

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    Flexible hours

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    A manager to learn from

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    If these are the factors that are important to Generation Z, do you feel your company is ready to meet their demands? How might you change your internal policies? With this group becoming 20% of the workforce in 2020, time is of the essence. 

    Ashley Basile Oeken is president of Engage! Cleveland, a nonprofit whose mission is to attract, engage and retain young, diverse talent to the Greater Cleveland area. Learn more about her organization’s work by clicking here.


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  • Next up: Health Insurance for Same-Sex Spouses
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  • Health Insurance for Same-Sex Spouses

    Following the United States Supreme Court’s decision on June 26, 2015, same-sex marriage is now recognized in all 50 states. While Medical Mutual has covered same-sex-spouses in many of its health plans in the past, the ruling means same-sex spouses will be considered eligible in all of its plans.

    Following the United States Supreme Court’s decision on June 26, 2015, same-sex marriage is now recognized in all 50 states. While Medical Mutual has covered same-sex-spouses in many of its health plans in the past, the ruling means same-sex spouses will be considered eligible in all of its plans.

    Many health insurance carriers are offering a limited special enrollment period for same-sex spouses who were previously married (before June 26, 2015) in a state where same-sex marriage was already legal.

    While this special enrollment period may only be available from other carriers for 30 days, Medical Mutual is giving previously married same-sex spouses a full 60 days to enroll in coverage. The deadline will be August 25, 2015. Dependents of same-sex spouses can also be added to existing plans during this time.

    Previously married same-sex spouses who miss the August 25, 2015, deadline for special enrollment will have to wait for their employer’s open enrollment period. Those married on or after June 26, 2015, will be required to follow the same processes for a qualifying event as spouses of opposite-sex marriages. 

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