I spend a good part of my days at my law firm explaining basic employment law to callers, and on occasion I get a caller who tells me I obviously don’t know what I am talking about, because what I am saying is contrary to one of their most cherished employment myths. The sad thing is, I usually get that type of call when the employee has relied on an employment myth and been fired as a result, and yet still refuses to believe it’s not true.
The amount of misinformation about an employee’s rights is truly astounding. I determined long ago that I do not play well with others, and knew that my happy place would never be as a cog in the corporate wheel. That’s why I work for myself (although, as they say, when you work for yourself, you swap one boss for hundreds). But if you have decided to earn your living working for someone else, let me at least identify the top nine workplace myths, before one of them bites you in the butt.
Myth #1 – Your employer needs a reason to fire you.
I begin with the biggest of them all. In every state in America, unless you are a government employee, union worker, or working under a contract for a specific period of time, you are an at-will employee. You work at the will of the employer. The employer does not need a reason to fire you.
To you in the back shouting, “Montana, Montana,” it is true that Montana is the one state that requires cause for termination, but it doesn’t prevent termination. It simply provides a little cash to the employee on the way out if they are fired without cause.
This misunderstanding is not as prevalent as it once was, but it still rears its ugly head regularly. Most commonly, the client calls, fully aware of the law regarding at-will employment, but they think it is nonetheless a wrongful termination if the employer fired them for a false reason. For example, the employer fired them for starting a fight on the loading dock, and they want me to sue so they can go to court and prove, through the use of the surveillance video from the dock, that they did not start the fight.
It doesn’t work that way. The employer does not need a reason to fire you, and it does not matter if they fired you for the wrong reason.
However, there is one big exception that most attorneys don’t know about. It is the weapon I am sometimes able to deploy to deal with a bogus termination. It can be a little difficult to understand, so let me walk you through it.
Let’s say you are fired for embezzlement, and of course you never embezzled. Even though you were fired on an entirely false basis, you cannot sue for wrongful termination. The employer does not need a reason to fire you, and the fact that the reason was bogus changes nothing. (Obviously if the reason was a pretext to cover unlawful discrimination, that is something different.) So off you go, taking the walk of shame, cardboard box in hand, with no basis for legal action.
Now you apply for a new job, and the prospective employer calls for references. Contrary to popular belief, as discussed below, the employer is free to discuss the reasons you are no longer working for the company. But if the employer states that you were terminated for embezzlement, you can sue for defamation, because the employer made a false statement about you. Still not an action for wrongful termination, but at least you’d have the satisfaction of proving that you did not embezzle.
Taking this idea even further, there is a concept called “self-published defamation.” Even if your former employer never tells a soul about the alleged embezzlement, YOU may be compelled to do so. If a prospective employer asks why you left your prior job, you are put in the position of having to explain that you were fired for embezzlement. You will of course explain that you never embezzled, but you were still forced to disclose the putative reason for the termination. If you don’t get the job on that basis, you can sue under the theory of self-published defamation.
Myth #2 – The employer is required to follow the employee handbook.
Many years ago, there was some truth to this. The employee handbook would specify some progression of disciplinary action before termination, and if the employer failed to follow its own handbook, we would sue for wrongful termination under a breach of contract claim.
But long ago the employers all wised up, and within the first two page of the handbook, it will state that it is not a contract, and the employer can disregard anything it says at the employer’s discretion. If you are going to argue that the handbook is a contract, then you are stuck with everything that “contract” says, including the statement that it is not a contract. An employer is not required to abide by its own handbook.
Myth #3 – You should refuse to sign a review or disciplinary memo if you don’t agree with what it says.
Let’s get this mantra going. An employer does not need a reason to fire you. If you refuse to sign something you are asked to sign, then the employer has an iron-clad reason t fire you — insubordination. You may be thinking that you don’t want to sign admitting guilt, since you may want to sue later for discrimination or whatever. But if you don’t sign, then whatever reason that is contained therein really doesn’t matter, because refusing to sign is reason enough.
To “preserve the record,” just sign under protest, and/or add a memo to your file specifying the reasons you disagree.
Myth #4 – An employee can sue for a hostile work environment.
An employee can sue for a hostile work environment, but not for the sort of hostile work environment they call me about.
If your boss is a screamer, and everyone goes home in tears every night because he is so mean and disrespectful, that certainly is a hostile work environment, but it would not be actionable. A “hostile work environment” is only actionable in the context of discrimination. If your boss is screaming at you because of your race, then that is actionable. But if he is screaming because he is an equal opportunity jerk, that is not.
I get calls on an almost weekly basis from people wanting to sue because the sales quotas are too high, or the deadlines on assignments are too short. They find the environment hostile, but that’s not something that can be addressed from a legal standpoint.
Myth #5 – Human Resources is there to help employees.
Human resources might be there to help you set up direct deposit for your paycheck, but as far as employment issues, they are the enemy. The typical scenario I encounter is one where an employee is not getting along with a co-worker, so they go to HR, hoping for help, and get terminated. If two employees aren’t getting along, the easiest solution is to fire one or both of them.
At some point it may become necessary to go into the lion’s den, as in the case of sexual harassment. But it should be viewed as a course of last resort.
Myth #6 – Prospective employers can’t be told the reason you left.
Not only can your former employer tell prospective employers why you left, they enjoy special protections to do so in some states. As a matter of public policy, we want employers to be able to freely discuss the experience they had with a past employee.
However, it is not an unfettered right. I’ve seen a number of cases where the employer is not happy with the fact that an employee left to seek employment with a competitor. Hoping to keep the employee from taking his knowledge of company policies to the competitor, the former employer comes up with some false story about why the employee left, to keep them from being hired or retained. That would be an act of bad faith, and would take the employer out of the protections afforded by statute. To avoid this possibility, many companies do in fact have a policy only to report job duties and time of employment, but it is not the law.
Myth #7 – You are protected against termination if you report illegal conduct.
A true whistleblower does enjoy protection against termination, but I list this as a myth because it is so often misinterpreted. The problem I see far too often is that people define something as illegal, refuse to do what they are asked on that basis, and get fired as a result. If you are going to bet your job on something being illegal, you’d better be sure it is. If a boss asks you to do something that is not in your job description, it may be a breach of your employment agreement, but it is not illegal.
Related to this point, and any wrongful termination claim, the fact that you can sue, doesn’t mean that you will be able to sue. Don’t push a point under the assumption that you will be able to sue. Anyone can sue anybody for anything, but wrongful termination actions are hugely time consuming and expensive. Chances are you won’t have the funds or desire to pursue a wrongful termination action, paying your attorney on an hourly basis. You are going to need to find an attorney willing to take it on a percentage (contingency) basis, meaning the attorney is going to spend hundreds of hours on your case for no money, unless and until they win. You may find it impossible to find an attorney willing to do so if your case is a wobbler.
Myth #8 – An employer can’t fire you for something you do on your own time.
Judges hate when I do this for some reason, but I find it is sometimes useful to use an extreme example to illustrate the point. To callers who claim to me that an employer cannot consider what you do on your own time, I ask them to envision that an employee went on a shooting spree over the weekend. If they elude the police and show up to work on Monday, would they have to be allowed to work?
Let’s say it again. An employer does not need a reason to fire you. If they find out that you listen to Kenny G, and want to fire you on that basis, they can do so (although most of us would agree that would be good cause in any event).
There is one limitation to firing you for something you do on your own time, which I will cover next.
Myth #9 – An employer can’t fire me for something I say, since that would violate the 1st Amendment.
This may not be as obvious as it seems. You are probably picking up on the theme that an employer does not need a reason to fire you, and the many variations thereon, but an employer cannot fire you for certain protected activities.
For example, if you get called to jury duty, the employer would not be able to fire you for attending, since you are required by law to do so. If a law is passed requiring masks be worn in public places, the employer could not fire you for doing so.
From that standpoint, you might surmise that an employer cannot fire you for exercising your right of free speech. But you would be wrong. The First Amendment prohibits the government from impinging on your freedom of speech, but your employer is free to impinge away.
One possible exception comes from specific protected activities. California, for example, makes it illegal to discriminate against someone based on their political views. So while your employer can fire you for what you say, if what you said, on your own time, was, “Vote for Pedro,” then that would be protected.
How to preserve your work record.
Getting fired is like having a bankruptcy on your credit report. You’ll have to report the termination to any prospective employer, and they’ll have to think twice about whether they want to hire someone who couldn’t make it at their last job. This is your choice to make, but I think preserving a perfect work history is important.
So the moment comes when HR calls you in, to give you your walking papers. Can anything be done to clear your record, or are you going to be branded for the rest of your life?
Here is my pro tip. Another point that some have entirely a** backwards is when one is entitled to unemployment. You only get unemployment if you are laid off or terminated. The termination can’t be for some act of malfeasance such as embezzlement, but if it just involves poor work performance, you get unemployment. (Some think you only get it if you quit, which makes no sense at all.)
Your employer does not want to pay you unemployment. In fact, they will often go to the EDD and tells lies about you, trying to push you into that malfeasance category.
If it is important to you to preserve your work history, so you will never have to tell a prospective employer that you were fired, then the employer will be open to allowing you to resign instead of being fired. They avoid paying you unemployment, and you get to keep your pristine work history. In fact, many large companies will present the termination as a choice – resign or be fired. They will act like they are offering you a kindness, but they really just want to avoid paying unemployment.
If you need the unemployment, then your choice is made, but just know that both options are likely available. In that moment when you learn that you are being fired, your mind will be spinning. But you need to focus. If you are confident that you will be able to quickly find a new position, announce your decision to quit right then and there. We have been brought in after the termination, and have never had a problem persuading the employer to change the termination to a resignation, but it is certainly not guaranteed. On a couple of occasions we have run into HR representatives who thought the sanctity of a termination could not be disturbed. Thankfully, we were always able to convince them otherwise, usually by implying that if the employee is not allowed to quit, then the option of a wrongful termination action will need to be explored.
What about severance pay?
Most employers are not heartless bastards who enjoy terminating employees. Indeed, the company might just be downsizing and the termination has nothing to do with your performance. They might be very open to making the transition as painless as possible. Conventional wisdom holds that a prospective employer will view you more favorably if you are still employed when seeking a position, than as someone who is unemployed, since they must then wonder why. When you ask to be allowed to resign instead of being fired, consider also asking for a delayed resignation. The company likely won’t want to continue paying you while you look for a new position, but perhaps you could burn off some personal days or vacation time. Be creative.
But don’t get greedy. If you make too many demands, your employer might just determine it will be easier to fire you and pay some unemployment. Many will seek to retain me to negotiate a severance package. If you were not fired for cause, and historically severance pay has been given in such situations, then asking for severance is entirely appropriate. But if severance pay is never given, then leveraging such an arrangement would likely necessitate a threat of legal action for wrongful termination. Absent a viable basis for such a threat, I won’t participate in what is really just extortion.
“You can’t fire me, I quit!”
This situation has arisen a few times in my practice, and I offer the war story as a potential strategy.
There is a concept called “after acquired evidence.” It basically holds that if an employer wrongfully terminates an employee, but then finds information that would have been a proper basis for terminating the employee, then there are no damages, or at most the damages are limited to the wages lost between the time of the wrongful termination and the time the proper cause would have been found. Most of the damages in a wrongful termination action arise from the loss of future employment and/or being moved down the promotion ladder. For example, if the manager of a Target is terminated and goes to a different retail chain, she may have to start as an assistant manager and work her way back up. The wages lost during that time would be recoverable. But if she would have been lawfully fired due to the after acquired evidence, then future lost wages become irrelevant.
In our case, we were representing an employee with a strong wrongful termination case based on age discrimination. As is always the case, the employer’s attorneys scoured his work history to see if they could drum up some pretext for termination, to bring the case under the after acquired evidence defense. In his application, he had stated that he had never been fired by any prior employer. They contacted all of his prior employers, and found a supervisor from one who claimed he had fired our client many years earlier. Indeed, his employment file showed that he had been terminated. On that basis, they claimed that he had lied on his application, and that they would have somehow discovered the prior termination, and therefore he could not recover future wages.
We defeated the defense. You see, just because an employer thinks they fired an employee, that doesn’t necessary make it true. It turns out that there had been some bad blood between our client and the long ago employer. When our client heard through the grapevine that he was about to be called into human resources and fired, he told a fellow employee to tell their boss that he had quit. He got in his car and drove home.
From the position of human resources, that changed nothing. The termination paperwork had been prepared, and the final paycheck had been written. They cared not that he had announced he was quitting before he was ever told that he was fired, which is why his employment file showed that he had been terminated. A smart employer would have been thrilled that he quit before he could be fired, since it would avoid unemployment. But because of the aforesaid bad blood, his supervisor specifically wanted to damage our client’s work history. But the judge agreed with us that our client quit before he was terminated, and therefore had not lied on his application. That position was bolstered by the fact that he had never sought unemployment.
I’m reminded of kids playing tag or some similar game. When the decision is made to play the game, they all scream, “not it!” How can one argue they are “it” if they have announced “not it”? If appropriate, be ready to proclaim “I quit” before you are terminated.