Employment-at-will lawyers

One of the issues that has received scant attention in the news reporting of the firings of eight U.S. attorneys is any mention of the employment at-will doctrine--a doctrine that union-represented employees, including these union-represented attorneys, in this country aren't at all worried about.

Under the legal doctrine of employment at-will, which the ACLU rightfully labels "a relic of 19th-century antilabor laws," unless there is some sort of a contract between you and your employer that says differently, or you live in the state of Montana, you are employed at the whim of your employer:

Employment At Will: What Does It Mean?

Job applicants and new employees are often perplexed to read -- in a job application, employment contract, or employee handbook -- that they will be employed "at will." They are even more troubled when they find out exactly what this language means: An at-will employee can be fired at any time, for any reason (except for a few illegal purposes, spelled out below). If the employer decides to let you go, that's the end of your job -- and you have very limited legal rights to fight your termination.

"If you are employed at will, your employer does not need good cause to fire you. In every state but Montana (which protects employees who have completed an initial "probationary period" from being fired without cause), employers are free to adopt at-will employment policies -- and many of them have. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

How come union-represented folks aren't concerned about at-will employment? Because union-represented workers are protected from unjust discipline and termination by their union contract, virtually all of which contain some form of a "just cause" provision. Simply stated, a just cause provision requires the boss to have a legitimate reason in order to discipline or discharge employees. A typical union contract just cause provision reads:

With respect to nonprobationary employees, disciplinary action, including termination of employment, shall be for just cause only. Unless the nature and circumstances of the offense warrant a more severe sanction, such discipline shall be progressive and shall be limited to written warning, disciplinary probation, suspension without pay, and dismissal.

Look though you might, you'd be hard-pressed to find a real definition of just cause in any union contract. That doesn't mean, however, that there isn't a widely-accepted definition of that crucial clause. In 1966, arbitrator Carroll R. Dougherty, in a now classic labor arbitration case, articulated seven tests of just cause:

1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s disciplinary conduct?
2. Was the employer’s rules or managerial order reasonably related to (a) orderly, efficient and safe operation of the employer’s business; and (b) the performance that the employer might properly expect of the employer?
3. Did the employer, before administering the discipline to the employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order of management?
4. Was the employer’s investigation conducted fairly and objectively?
5. At the investigation, did the decision maker obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?
7. Was the degree of discipline administered by the employer reasonably related to (a) the seriousness of the employee’s proven offense; and (b) the record of the employee in the service of the employer?

A just cause provision in a union contract is the greatest nullifier of an employer's common law right to terminate employees at-will, which makes it a principle reason why employers fight tooth and nail to prevent their employees from organizing.

It seems to me that the firings of the eight U.S. attorneys was politically-motivated, but, would their firings for "performance-related reasons" be upheld if they were covered under a just cause provision? To find the answer to that question, take a look at test question number five and let me know what you think.