Legislative Briefing Kit

WRONGFUL DISCHARGE

• INTRODUCTION
• QUESTIONS AND ANSWERS
• CURRENT LEGAL STATUS
• MODEL BILL
• UNIFORM STATE LAW COMMISSIONERS MODEL BILL
• LEGISLATIVE PROSPECTS
• BIBLIOGRAPHY

INTRODUCTION TO WRONGFUL DISCHARGE

There are 80 million people employed in the private sector of theAmerican economy. 1 Only about20 million of these are union members protected from unjust dismissal bycollective bargaining agreements. The remaining 60 million are employed “atwill”. 2
“Atwill” employees serve at the unfettered discretion of employers. They canbe fired for any reason, even a bad one, or for no reason at all. 3

Unfortunately, employers have frequently exercised this discretion in anarbitrary and unfair way. In one all too common example, Mrs. Dorothy Jamisonwas fired from her job as a supervisor in a Philadelphia nursing home after 10years of service because she called in two hours late to advise her employerthat she was unable to come to work because her brother, with whom she lived,had died. Other employees have been fired for protesting the concentration ofcarcinogenic saccharin childrens’ aspirins 4for refusing to vote as their employer wished, 5 to avoid paying contractually earned commissions, 6 for refusing to falsify medicalrecords, 7 and a host of otherequally unjust reasons.

The magnitude of the problem is enormous. Two million at will employees arefired every year. When impartial arbitrators are given the opportunity toreview termination decisions, half of them are found to be unjust. Expertsbelieve that at least 150,000 people are unjustly fired every year. 8
The costs of this injusticeare enormous. The financial hardship imposed on workers and their families issevere, but the financial loss is only the beginning. The stress caused bytrying to support oneself and one’s family without a job, and the loss ofself-esteem caused by being fired, combine to drive many fired workers toalcoholism, mental illness, and even suicide. 9

The answer to this injustice is legislation providing that all employees canbe fired only for just cause.

QUESTIONS AND ANSWERS: WRONGFUL DISCHARGE

Doesn’t such legislation interfere with an employer’s rightto manage its business?
An employer has a legitimate right to manage its business at it sees fit. That right, however, is not unlimited, andcannot be exercised in a manner which denies fundamental American values.

Employers do not have the right to discriminate on the basis of race, sex,or age in employment decisions. They should not have the right to fire workerswithout a legitimate reason.

Why is this a civil liberties problem?
Free expression, equal protection, and due process are the basic rights of allAmericans.When the government infringes upon these values, it is a violation ofthe Constitution.It is not a violation of the Constitution for a privatecorporation to infringe upon these values since the Constitution limits onlygovernmental action. The loss of freedom to an individual, however, is just asgreat when it is done by a corporation as when it is done by the government. The potential loss of freedom to all citizens is also just as great. America’scorporations have grown to a level of size and power undreamed of by the framersof the Constitution. A number of corporations are wealthier than mostcountries, and dwarf state and local governments.

Progressive organizations have long opposed racial discrimination inemployment and corporate censorship of whistleblowers in the private sector,even though these practices do not violate the Constitution. Corporate policieswhich inflict penalties without due process also warrant our opposition.

Wouldn’t the cost of compliance constitute a burden onemployers which would raise prices to consumers and make American industry lesscompetitive?
Protecting employees from unjust discharge willnot hurt American industry, and may even help it. The costs of arbitration arerelatively small, and the requirement that employees share the cost willminimize the number of hearings. The overall cost will not constitute asignificant burden on employers.

This small cost may be more than outweighed by benefits which industry wouldreceive. Evidence from a number of sources shows that industry can prosper bytreating workers fairly.

• Unionized employers have been providing these protections to their workersfor decades. While employers frequently complain about various constraintsimposed by unions (such as work rules), complaints about firing only for justcause are conspicuous by their absence. Nor has there been a single recordedcase of an employer offering any inducement to a union in exchange for droppingthis requirement. 10
• Many non-union employers have voluntarily adopted policies of firing onlyfor just cause. These include such spectacularly successful companies as IBM. They adopted these policies because treating employees fairly increased theireffectiveness and profits.
• Virtually every other industrialized nation has adopted rules similar tothose contained in this policy. Two of the most notable are West Germany andJapan. 11 These countrieshave not found the burden of fair play difficult to bear, as shown by theiroutstanding success in international trade competition.

Wouldn’t the hearings be very complicated and expensive?
No. The issues in such cases are usually fairly straightforward, and thearbitration process has for years demonstrated that it is possible to resolvelabor discipline disputes fairly at a reasonable cost. Existing arbitrationorganizations (such as the American Arbitration Association) already handlethousands of these cases annually (mostly in the context of collectivebargaining agreements). An experienced corps of neutral labor arbitrators haslearned to conduct fair hearings incorporating the key elements of due process(notice, compulsory discovery, confrontation and cross­examination) withoutbecoming mired in the time consuming and costly legal proceedings that typifyjudicial proceedings. A labor arbitration can frequently be resolved in 3-6months, at a cost of approximately $1500. They are frequently held withoutattorneys (the arbitrator will draw out the relevant evidence). Both labor andmanagement agree that the results are generally fair to both sides.

Workers who lose their jobs are already eligible forunemployment compensation payments. Why is anything more needed?
Unemployment compensation falls far short of complete protection for workerswho have lost their jobs.

1. Unemployment compensation payments have a ceiling. While this ceilingvaries from state to state, most workers’ UC payments are signifiantly less thantheir former paycheck.
2. Unemployment compensation payments are of limited duration. While mostpeople are able to find another job before their payments end, many are not sofortunate.
3. Even where a worker finds a new job immediately at the same pay, there areeconomic losses, such as seniority, accrued benefits (vacation, etc.), andvested pension and profit sharing plans.
4. Unemployment compensation does nothing for the human costs of losing one’sjob.

Isn’t this creating a statutory right to a job?
No. The proposed statute would not require the government or privateindustry to create a single job. It would not require that any employer give ajob to a person the employer did not feel was qualified. And it would notprohibit any employer from eliminating a job if it was no longer needed.

All this statute would do is prevent people from being fired from theirjobs, unless they have done something to justify it.

If employers are voluntarily adopting policies of firingonly for just cause, isn’t a statute unnecessary?
Unfortunately, only a minority of companies have adopted such progressivepolicies. There is no assurance that the other companies ever will. There arereasons to believe that many businesses will never adopt such a policy.

Won’t this prohibit employers from having layoffs orclosing plants when it’s required?
No. The body of arbitrationdecisions which has evolved to define just cause in the context of collectivebargaining disputes make it clear that there is no violation of employees’rights where their job was eliminated for economic reasons.

Economic terminations can also be specifically excluded from the definitionof discharge, as they are in the ACLU model statute.

Can’t “Whistleblower” laws and similar lawstailored to the specific wrong solve the problem without taking as muchauthority away from the employer?
No. The number of unjustreasons for firing an employee is virtually unlimited. To prohibit each onespecifically would require literally dozens of statutes (and even then would beincomplete).

The only practical solution is to have a general statute requiring justcause for firing.

Doesn’t this type of legislation hurt the union movement,thereby hurting working people?
Whether wrongful dischargelegislation would help or hurt the unions is far from clear. It would provideall workers a benefit currently enjoyed only by those who are organized, therebyremoving this from the list of benefits a union could offer in a representationelection. The union could still offer many important benefits, such ascollective bargaining over wages and working conditions, representation atgrievance proceedings and termination proceedings under the model act, andnegotiation over economic terminations such as layoffs and plant closings.

Wrongful discharge laws also offer unions certain benefits. Unionscurrently lose many certification elections. One reason is that mostworker/voters have no experience with the union on which they are voting. Ifthis proposal becomes law, unions could represent workers who were not unionmembers at arbitration hearings. This could build the experience and good willneeded to win a representation election. The success of the American Federationof State, County, and Municipal Employees (AFSCME) in organizing governmentemployees with civil service protections against wrongful discharge supportsthis view.

Isn’t it unfair to deprive unjustly fired workers of theright to a jury trial and a full range of remedies? (Commissioners’ Model Act)
In a completely fair world all workers would have the right to a just causefor discharge standard and an affordable jury trial providing the full range ofremedies.

The reality, however, is that we may have to choose between the presentsystem, under which over 95% of those unfairly fired get nothing, 12 and a system where everyoneunjustly fired is reimbursed for their lost pay and benefits.

Given this situation, surely the fairest choice is for all to receive someprotection.

CURRENT LEGAL STATUS

Numerous attempts have been made to challenge the doctrine of employment atwill in the courts. Although the doctrine is common law which was created byjudges, and which judges have the authority to change, these challenges have hadlimited success.

Only in 3 narrow categories have some courts been willing to limit anemployer’s right to fire arbitrarily. 13

1.Where an employer has agreed to other employment terms.

If an employer has signed a written employment contract guaranteeingemployment for a fixed term of years, or guaranteeing not to fire without justcause, this contract may be enforceable by the employee. The reasoning is thatthe parties have the right to a legally enforceable agreement which reflectstheir mutual desires.

This would logically create a broad exception to the general rule wheneverthe employee could show that his employer had agreed that his employment was notat will. One common example would be where the employee handbook states thatemployees will be fired only for just cause, or gives specific grounds orprocedures for termination. 14 Another would be where the employer makes oral assurances of job security.

Employers, however, can easily avoid liability under this theory merely bymaking it clear in their employee handbooks and other written materials thatemployment is terminable at will.

2.Where the employer’s reason for firing violates public policy.

This once appeared to be a promising legal trend. Initial decisionsprovided redress to employees who were fired for filing a workers’ compensationclaim, 15 for refusing togive perjured testimony, 16and for serving on a jury.17

Again, however, the promise went unfulfilled, as many courts defined thepublic policy exception so narrowly as to render it nearly useless. Among themany situations where courts refused to find that a firing violated publicpolicy are filing a complaint with state regulatory authorities regardingillegal stock manipulations, 18 refusingto vote as the employer wished 19,and refusing to give false information to federal inspectors. 20

3.Where the employee is a member of a protected group.

Federal legislation now prohibits employment discrimination against a numberof groups including racial minorities, women, the elderly, and the handicapped.

Millions of employees, however, do not belong to any of these protectedgroups.

Moreover, even employees who do belong to a protected group are protectedonly from being fired because of their race, sex, etc. If they are firedunjustly for any other reason, they have no protection.

Overall, thirty years of legal challenges have failed to solve the problemof unjust dismissals. Legal experts do not believe this will change in thefuture. New laws are needed.

The only state which currently has a comprehensive wrongful dischargestatute is Montana. 21 Whilethe rights provided by this statute are good, its reliance upon litigation forenforcement is a major liability (see commentary to ACLU model act).

ACLU MODEL STATUTE

A number of bills have been introduced in various state legislatures toprotect workers from unjust dismissal. 22 Although they all have the same objective, they vary a great deal in theirapproaches to implementation.

The following proposal is an attempt to select the best features from eachbill. Some affiliates will strike the political and administrative judgmentsdifferently, and the proposal should be viewed as a guide, not a finishedproduct.

A. Summary of the Statute

Employers with more than 5 employees are prohibited from dischargingemployees without just cause.

The statute adopts the “common law” meaning of just cause whichhas been developed over many years by labor arbitrators. The essence of thisstandard is that the employee’s conduct must adversely affect their jobperformance in a significant way.

This statute affects only employees who are discharged because of theirconduct (inadequate quantity or quality of work or breaking company rules). Decisions by employers to eliminate jobs for economic reasons (layoffs,reductions in force, plant closings and relocations, etc.) are not affected.

Employers are required to notify employees at the time of discharge of thereasons for the discharge and to confirm this in writing within 15 days.

Employees who believe that they have been fired without just cause may filea complaint with the state employment relations commission within 30 days ofreceiving the written confirmation.

The commission shall appoint a mediator within 10 days to resolve thedispute.
If the dispute is not resolved within 30 days of the appointmentof the mediator, the employee may opt for binding arbitration.

The arbitrator shall be selected from a panel of non-state employeesmaintained by the commission. The arbitrator’s fees and expenses shall bedivided equally by the parties until the employee has contributed one week’stake home pay. All additional expenses shall be paid by the employer.

The arbitrator shall hold a hearing within 60 days to determine whetherthere was just cause for the discharge, and shall announce a decision within 30days of the hearing.

The arbitrator’s award shall be final and binding and may be enforced bycourt order if necessary.

UNJUST DISCHARGE BILL

B. Complete Statute

A bill to prohibit the unjust discharge of certain employees; toprovide for mediation and final and binding arbitration of these cases undercertain circumstances; to provide for the selection and payment of arbitratorsand for their authority; to prescribe the procedure for certain hearings; and toprovide for the enforcement and review of awards of arbitrators.

THE PEOPLE OF THE STATE OF ______ ENACT:

Sec. 1. For the purposes of this act, the words and phrases defined insections 2 and 3 have the meanings ascribed to them in those sections.

Sec. 2. (1) “Commission” means the employment relationscommission created by Act no. ______ . (The name of the appropriate agency willvary from state to state).

(2) “Discharge” means an involuntary dismissal from employment. Discharge includes a resignation that results from an improper or unreasonableaction or inaction of the employer.

“Discharge” does not include termination of employment foreconomic reasons such as layoffs, reductions in force, or the closing orrelocation of all or part of a business.

Sec. 3. (1) “Employee” means any person who has worked for anemployer for not less than 20 hours per week except –
(a) Persons who areprotected by civil service or tenure against unjust discharge.

(2) “Employer” means a person or an organization that employs notless than 5 persons.

Sec. 4. (1) An employer shall not discharge an employee except for justcause.
The following acts shall under no circumstances be considered justcause.

1.Exercise of rights under the First Amendment to the United StatesConstitution.

2.Exercise of other legal rights or civic obligations.

3.Revelation of what the employee in good faith believes to be illegalconduct by the employer.

4.Good faith refusal to engage in illegal conduct requested by the employer.

(2) An employer who discharges an employee shall notify the employee orallyat the time of discharge, and in writing by registered mail within 15 calendardays after the discharge, of all reasons for the discharge.

Sec. 5. (1) An employee who believes that he or she has been dischargedin violation of section 4(1) may file by registered mail a written complaintwith the commission not later than 30 calendar days after receipt of theemployer’s written notification of discharge as provided in section 4(2). Thecomplaint shall contain the names, addresses, and telephone numbers of theemployer and of the employee, the date of the discharge of the employee, and ashort statement of the reason for the filing of the complaint.

(2) If an employer fails to provide the discharged employee with a writtennotification of his or her discharge and the reason for it, the dischargedemployee may file by registered mail a written complaint, as described insubsection (1), with the commission not later than 90 calendar days after thedischarge.

Sec. 6. (1) Upon receipt of complaint from a discharged employee, thecommission immediately shall appoint from its panel of mediators a mediator toassist the employer and the discharged employee in attempting to resolve theirdispute.

(2) If the dispute is not resolved within 30 calendar days after thecommencement of mediation, the mediator shall explain to the employer and thedischarged employee the process and purpose of final and binding arbitration andthe optional methods of selecting and compensating an arbitrator, as describedin sections 7 and 8.

(3) After the option of arbitration is made available to the dischargedemployee pursuant to subsection (2), the employee may request a continuance ofmediation if he or she believes that a mutual resolution of the dispute ispossible. If a mutual resolution is not likely, the discharged employee mayfile by registered mail a written request with the commission for arbitration ofthe dispute, together with a statement of the method, pursuant to sections 7 and8, that he or she desires of selecting and compensating the arbitrator.

Sec. 7. An arbitrator for a case brought under this act may be selectedfrom 1 of the following 2 alternatives:

(a) Upon the request of a discharged employee, the commission immediatelyshall select from a list that it maintains of impartial, competent, andreputable arbitrators who are not employees of this state, 5 persons as nomineesfor arbitrator. Within 10 days after receipt of the names of the nominees, theemployer and the employee may each strike peremptorily the name of 2 nominees. If the employer or employee does not return the list within the 10-day period,then each person whose name appears on the list shall be considered to beacceptable to that party. Within 7 days after this 10-day period, thecommission shall designate 1 of the remaining nominees as the arbitrator. Ifeach nominee who is considered to be acceptable by the employer and the employeedeclines or for any reason is not able to serve as arbitrator, then the directorof the commission shall appoint an arbitrator from other members of this panelof arbitrators without the submission of any additional lists to the employerand the discharged employee.(b) The employer and the discharged employee mayselect as arbitrator any person who is acceptable to both parties.

Sec. 8. (1) The employer and employee shall share equally the fee andexpenses of the arbitrator until the employee has contributed a sum equal to oneweek’s take home pay. All additional expenses shall be paid by the employer.

(2) A party who produces a witness at the arbitration hearing shall bear theexpenses, if any, of that witness. Other expenses similarly shall be borne bythe party incurring them.

Sec. 9. (1) Within 60 calendar days after his or her appointment, orwithin further additional periods to which the parties may agree, the arbitratordesignated pursuant to section 8 shall call a hearing and shall give reasonablenotice of the time and place of the hearing to the employer and the employee.

(2) The arbitration may proceed in the absence of an employer or theemployee, who, after due notice, fails to be present at the hearing and whofails to obtain an adjournment of the hearing, as provided in subsection (3). An arbitrator shall not grant or deny a grievance solely on the default of aparty. Rather, the arbitrator shall require the opposing party to submitevidence, as necessary, for the rendering of an award.

(3) The arbitrator, subject to section 10 and for good cause shown, mayadjourn the hearing upon the request of a party or upon his or her owninitiative, and shall adjourn the hearing when both parties agree to theadjournment.

Sec. 10. (1) The proceedings shall be informal. The arbitrator mayconduct the hearing in whatever manner that he or she believes will permit thefull and most expeditious presentation of the evidence and arguments of theemployer and the employee. Technical rules of evidence shall not apply, and thecompetency of the evidence shall not be considered to be impaired by theinformality of the proceedings. The employer and the employee, though, may notsubmit a new or different claim to the arbitrator after his or her appointmentwithout the consent of the arbitrator and all other parties. The arbitrator mayreceive into evidence any oral or documentary evidence or other data that he orshe considers to be relevant to the issues under consideration at the hearing,and the arbitrator shall request the submission of any evidence that he or sheconsiders to be necessary for a proper understanding and determination of theissues in dispute.

(2) The arbitrator may administer oaths and require the attendance ofwitnesses and the production of books, papers, contracts, agreements, anddocuments that he or she considers to be material to a just determination of theissues in dispute. For this purpose, the arbitrator may issue subpoenas. If aperson refuses to obey a subpoena, or to be sworn or to testify, or if awitness, party, or attorney is guilty of contempt while in attendance at ahearing, the arbitrator may, or the attorney general if requested shall, invokethe aid of the circuit court within the jurisdiction in which the hearing isbeing held, which court shall issue an appropriate order. The court may punisha failure to obey the order as contempt.

(3) Attendance at the hearing is limited. Both employer and employee havethe right to be represented by counsel or other representatives of theirchoice. In addition, a person who has a direct interest in the arbitrationaward is entitled to attend the hearing. The arbitrator shall determine thepropriety of the attendance of other persons at the hearing. The arbitratoralso shall have the power to require the retirement of a witness during thetestimony of another witness.

(4) The employer, the employee, or both may, before the scheduled hearingdate, request that the commission arrange for a verbatim record of theproceeding. If the employer and the employee agree that a transcript is to bethe official record of the proceeding, then a transcript shall be made availableto the arbitrator, and the arbitrator shall make the transcript available forinspection, at a designated time and place, by the employer and the employee. The party that requests that a verbatim record of the proceedings be made shallbear the total cost of the record. If the employer and the employee requestthat a verbatim record of the proceedings be made, then the employer and theemployee shall share equally the cost of the record.

(5) The burden of proof shall be upon the employer to show that thedischarge was for just cause. The employee shall have the right confront andcross examine any witness against him or her.

Sec. 11. (1) Within 30 calendar days after the close of the hearing, orwithin further additional periods to which the parties may agree, thearbitrator, based upon the issues and evidence presented to him or her, shallrender a signed opinion and award. The arbitrator shall deliver by registeredmail a copy of the opinion and award to the employer, the employee, and thecommission.

(2) Some of the remedies from which the arbitrator may select are thefollowing:
(a) The sustainment of the discharge.
(b) Reinstatement of the discharged employee with no back pay.
(c) Reinstatement of the discharged employee with partial back pay.
(d) Reinstatement of the discharged employee with full back pay.
(e) Aseverance payment. The severance payment should be calculated to equal, asclosely as possible, the employee’s lost compensation and benefits until theycan obtain comparable new employment, unless there are special circumstancesthat justify a lesser amount. If possible, severance should be paid in regularincrements for the duration of unemployment, rather than a lump sum.

(3) If the employer and the employee settle their dispute during the courseof the arbitration proceeding, the arbitrator, upon their request, may set forththe terms of the settlement in the award.

Sec. 12. An award of the arbitrator shall be final and binding upon theemployer and the employee and may be enforced, at the instance of either theemployer or the employee, in the circuit court for the county in which thedispute arose or in which the employee resides.

Sec. 13. The circuit court for the county in which the dispute arose orin which the employee resides may review an award of the arbitrator, but onlyfor the reason that the arbitrator was without or exceeded his or herjurisdiction, or the award was procured by fraud, collusion, or other similarand unlawful means. The pendency of a proceeding for review shall not stayautomatically the award of the arbitrator.

Sec. 14. If an employer willfully disobeys or offers resistance to alawful order of enforcement issued by the circuit court, then the employer orthe employee, whichever is appropriate, may be held in contempt. The punishmentfor each day that the contempt persists may be a fine, fixed at the discretionof the court, in an amount not to exceed $250.00 per day.

Sec. 15. The protections provided to employees by this act are inaddition to any other legal rights they may have in connection with a loss ofemployment.

Sec. 16. An employer shall post a copy of this act in a prominent placein the work area.

C. Commentary
The heart of this proposed statute is therequirement that employers fire employees only for “just cause”.

Just cause is purposely not defined in the statute. The intention is toadopt the standard which has been developed over many years by arbitrators incollective bargaining disputes.

This standard is flexible to accommodate the needs of different jobs indifferent industries (it is much more serious, for example, for an airline pilotto be late for work than a file clerk). However, there is a core of meaningwhich virtually all arbitrators accept.

In order for a discharge to be done with just cause,

1.The employee’s conduct must adversely affect their job performance.

This could be by breaking a company rule or by not producing an adequatequality or quantity of work.

2.The rule (or performance standard) must have been made known to theemployee.

3.The infraction must be sufficiently serious to warrant firing.

Certain conduct, such as assaulting co-workers or reporting for work underthe influence of drugs, are generally considered so serious that it is just tofire on the first offense.

For other infractions, however, such as lateness or absenteeism, theconsensus is that the behavior must continue in the face of warnings before adischarge is just.

4.The rule must be consistently enforced.

Even where the other three requirements are met, an employer can fire anemployee only where previous employees, whose conduct was comparable, were alsofired. If they were not fired, the employer is limited to whatever level ofdiscipline was actually imposed.

There are several key sections of this type of statute where choices must bemade. These include:

1.Definition of Employee (Section 3) – The proposal protects all employeeswho work more than 20 hours per week and are not already protected by civilservice rules.

Arguments can be made for the following exceptions:

i.Managerial Employees – It can be legitimately argued thatexecutives do not need this protection because of their higher income and theirincreased ability to protect themselves with employment contracts.

The counter argument is that it is equally unfair to fire an executive as arank and file employee, and that most executives do not have employmentcontracts which protect them from unjust dismissal.

If it is decided to include this exception, it should be specifically andnarrowly defined.

An excellent way of doing this is to provide that an employer may select 5individuals or 5% of his workforce (whichever is greater) to be exempt from thestatutory protection. This selection must be made before the decision toterminate.

ii.Probationary Employees – A new employee generally doesnot have as great an investment in their job as an employee who has held the jobfor years, and may be hurt less by discharge.

The counter argument is that employees frequently quit their prior jobs inorder to take new ones. This investment justifies protecting them againstunjust dismissal. This exception is one which employers will push especiallyhard for.

2.Definition of Employer (Section 3) – The proposal exempts employers ofless than 5 people on the theory that the proprietors of such “mom and pop”businesses have a freedom of association right to have employees with whom theyare comfortable.
It could be argued, however, that the right not to befired unfairly is the more important right.

3.Tribunal (Section 7) – This is probably the most difficult choice. Thereare three basic approaches:

a.Private Arbitration
b.Government Arbitration
c.Litigation

The advantages of private arbitration are:
i. Thearbitration system is in place and has demonstrated the ability to handle thesetype of disputes fairly.
ii. No expenditure of tax dollarsis required.
iii. It is relatively immune from politicalinfluence.
iv. It is within the means of the averageworker.

Another reasonable approach is to use a government agency to do thearbitration. Many states already have agencies for this purpose. This approachwould be the least expensive. However, while some agencies, such asunemployment compensation, have remained objective, others, such as the NationalLabor Relations Board, have been so influenced by political pressure that theyhave lost the confidence of both management and labor.

The litigation approach is not recommended because no one has yet found away to bring the costs of this method within the means of most workers. Theycould not afford to pay a lawyer’s normal fee for the number of hours such acase would require. The probability of winning and potential economic recoveryare not high enough for contingent fee arrangements to be feasible.

4.Costs (Section 8) – Ordinarily, the cost of arbitration is shared equallybetween the parties. While this amount (about $750) may be within the means ofmany workers, it is high enough to discourage many people from bringing justclaims. The proposal, therefore, shifts this cost to the employer. The reasonfor requiring the employee to pay one week’s take home pay is to discouragefrivolous claims.

Obviously, an argument could be made that the employer should bear theentire cost.

UNIFORM STATE LAW
COMMISSIONERS’ MODEL ACT

A. Background

The previous model statute represents the ideal. The ACLU and otherprogressive organizations have attempted to enact such legislation for yearswithout success.

This has lead some advocates of workplace justice to propose a compromise. Under this approach, workers would receive a “just cause” standard andaffordable binding arbitration. The available remedies would be restricted toreinstatement with backpay (or severance pay). Compensatory damages (“painand suffering”) and punitive damages would not be available. Unlike ourmodel, however, this approach requires workers to submit their claims toarbitration. The option of a jury trial with potential tort damages iseliminated. This relief from catastrophic liability is of enormous value toemployers (the average jury verdict in California is now in excess of $500K.)23

A model act based on this approach was adopted by the National Conference ofCommissioners on Uniform State Laws in August 1991. Because it is a compromise,and because the commissioners are an influential mainstream group, their modelwill receive serious attention in many state legislatures. The ACLU nationaloffice was an advisor to the commissioners’ drafting committee, and supportedthe final product. Affiliates may want to consider supporting this approach asa good (though imperfect) measure which has the best chance of becoming law.

UNIFORM EMPLOYMENT
TERMINATION ACT

B. MODEL ACT

NATIONAL CONFERENCE OF COMMISSIONERS UNIFORM STATE LAWS

Section 1. DEFINITIONS. In this [Act]:

(1) “Employee” means an individual who works for hire, includingan individual employed in a supervisory, managerial, or confidential position,but not an independent contractor.
(2) “Employer” means a person[, excluding this state, a political subdivision, a municipal corporation, orany other governmental subdivision, agency, or instrumentality,] that employs[five] or more employees for each working day in each of 20 or more calendarweeks in the two year period next preceding a termination or an employer’sfiling of a complaint pursuant to Section 5(c), excluding a parent, spouse,child, or other member of the employer’s immediate family or of the immediatefamily of an individual having a controlling interest in the employer.
(3) “Fringebenefit” means vacation leave, sick leave, medical insurance plan,disability insurance plan, life insurance plan, pension benefit plan, or otherbenefit of economic value, to the extent the leave, plan, or benefit is paid forby the employer.
(4) “Good cause” means
(i)a reasonable basis related to an individual employee for termination of theemployee’s employment in view of relevant factors and circumstances, which mayinclude the employee’s duties, responsibilities, conduct on the job orotherwise, job performance, and employment record, or
(ii)the exercise of business judgement in good faith by the employer, includingsetting its economic or institutional goals and determining methods to achievethose goals, organizing or reorganizing operations, discontinuing,consolidating, or divesting operations or positions or parts of operations orpositions, determining the size of its work force and the nature of thepositions filled by its work force, and determining and changing standards ofperformance for positions.

(5) “Good faith” means honesty in fact.
(6) “Pay”as a noun means hourly wages or periodic salary, including tips, regularly paidand nondiscretionary commissions and bonuses, and regularly paid overtime, butnot fringe benefits.
(7) “Person” means an individual,corporation, business trust, partnership, association, joint venture, or anyother legal or commercial entity [, excluding government or a governmentalsubdivision, agency, or instrumentality].
(8) “Termination”means:
(i) a dismissal, including that resulting from theelimination of a position, of an employee by an employer;
(ii)a layoff or suspension of an employee by an employer for more than twoconsecutive months; or
(iii) a quitting of employment or aretirement by an employee induced by an act or omission of the employer, afternotice to the employer of the act or omission without appropriate relief by theemployer, so intolerable that under the circumstances a reasonable individualwould quit or retire.

SECTION 2. SCOPE
(a) This [Act] applies only to a terminationthat occurs after the effective date of this [Act].
(b) This [Act] doesnot apply to a termination at the expiration of an express oral or writtenagreement of employment for a specified duration, which was valid, subsisting,and in effect on the [effective] date of this [Act]
(c) Except as providedin subsection (e), this [Act] displaces and extinguishes all common-law rightsand claims of a terminated employee against the employer, its officers,directors, and employees, which are based on the termination or on acts taken orstatements made that are reasonably necessary to initiate or effect thetermination if the employee’s termination requires good cause under Section 3(a), is subject to an agreement for severance pay under Section 4 (c), or ispermitted by the expiration of a specified duration agreement under Section 4(d).
(d) An employee whose termination is not subject to Section 3(a) or4(d) and who is not a party to an agreement under Section 4(c) retains allcommon-law rights and claims.
(e) This [Act] does not displace orextinguish rights or claims of a terminated employee against an employer arisingunder state or federal statutes or administrative regulations having the forceof law [or local ordinances valid under state law], a collective-bargainingagreement between an employer and a labor organization, or provisions of anexpress oral or written agreement relating to employment that do not violatethis [Act]. Those rights and claims may not be asserted under this [Act],except as otherwise provided in this [Act]. The existence or adjudication ofthose rights or claims does not limit the employee’s rights or claims under this[Act], except as stated in Section 7(d).

SECTION 3. PROHIBITED TERMINATIONS.
(a) Unless otherwiseprovided in an agreement for severance pay under Section 4(c), or for aspecified duration under Section 4(d), an employer may not terminate theemployment of an employee without good cause.
(b) Subsection (a) appliesonly to an employee who has been employed by the same employer for a totalperiod of one year or more and has worked for the employer for at least 520hours during the 26 weeks next preceding the termination. A layoff or otherbreak in service is not counted in determining whether an employee’s period ofemployment totals one year, but the employee is considered to be employed duringpaid vacations and other authorized leaves. If an employee is rehired after abreak in service exceeding one year, not counting absences due to labor disputesor authorized leaves, the employee is considered to be newly hired. The 26-weekperiod for purposes of this subsection does not include any week during whichthe employee was absent because of layoffs of one year or less, paid vacations,authorized leaves, or labor disputes.

SECTION 4. AGREEMENTS BETWEEN EMPLOYER AND EMPLOYEE.
(a) Aright of an employee under this [Act] may not be waived by agreement except asprovided in this section.
(b) By express written agreement, an employer andan employee may provide that the employee’s failure to meet specifiedbusiness-related standards of performance or the employee’s commission oromission of specified business-related acts will constitute good cause fortermination in proceedings under this [Act]. Those standards or prohibitionsare effective only if they have been consistently enforced and they have notbeen applied to a particular employee in a disparate manner withoutjustification. If the agreement authorizes changes by the employer in thestandards or prohibitions, the changes must be clearly communicated to theemployee.
(c) By express written agreement, an employer and an employee maymutually waive the requirement of good cause for termination, if the employeragrees that upon the termination of the employee for any reason other than thewillful misconduct of the employee, the employer will provide severance pay inan amount equal to at least one month’s pay for each period of employmenttotaling one year, up to a maximum total payment equal to 30 months’ pay at theemployee’s rate of pay in effect immediately before the termination. Theemployer shall make the payment in a lump-sum or a series of monthlyinstallments, none of which may be less than one month’s pay plus interest onthe principal balance. The lump-sum payment must be made or the monthlypayments must begin within 30 days after the employee’s termination. Anagreement under this subsection constitutes a waiver by the employer and theemployee of the right to civil trial, including jury trial, concerning disputesover the nature of the termination and the employee’s entitlement to severancepay, and constitutes a stipulation by the parties that those disputes will besubject to the procedures and remedies of this [Act].
(d) The requirement of good-cause for termination does not apply to thetermination of an employee at the expiration of an express oral or writtenagreement of employment for a specified duration related to the completion of aspecified task, project, undertaking, or assignment. If the employmentcontinues after the expiration of the agreement, Section 3 applies to itstermination unless the parties enter into a new express oral or writtenagreement under this subsection. The period of employment under an agreementdescribed in this subsection counts toward the minimum periods of employmentrequired by Section 3(b).
(e) An employer may provide substantive andprocedural rights in addition to those provided by this [Act], either to one ormore specific employees by express oral or written agreement, or to employeesgenerally by a written personnel policy or statement, and may provide that thoserights are enforceable under the procedures of this [Act].
(f) An employingperson and an employee not otherwise subject to this [Act] may become subject toits provisions to the extent provided by express written agreement, in whichcase the employing person is deemed to be an employer.
(g) An agreementbetween an employer and an employee subject to this [Act] imposes a duty of goodfaith in its formation, performance, and enforcement.
(h) By expresswritten agreement, an employer and an employee may settle at any time a claimarising under this [Act].
(i) By express written agreement before or aftera dispute or claim arises under this [Act], an employer and an employee agree toprivate arbitration or other alternate dispute- resolution procedure forresolving the dispute or claim.
(j) By express written agreement after adispute or claim arises under this [Act], an employer and an employee agree tojudicial resolution of the dispute or claim.
(k) The substantive provisionsof this [Act] apply under any agreement authorized by subsections (i) and (j).

SECTION 5. PROCEDURE AND LIMITATIONS.
(a) An employee whoseemployment is terminated may file a complaint and demand for arbitration underthis [Act] with the [Commission; Department; Service] not later than 180 daysafter the effective date of the termination, or the date of the breach of anagreement for severance pay under Section 4(c), or the date the employee learnsor should have learned of the facts forming the basis of the claim, whichever islatest. The time for filing is suspended while the employee is pursuing theemployer’s internal remedies and has not been notified in writing by theemployer that the internal procedures have been concluded, but resort to anemployer’s internal procedures is not a condition for filing a complaint underthis [Act].
(b) Except when an employee quits, an employer, within 10business days after a termination, shall mail or deliver to the terminatedemployee a written statement of the reasons for the termination and a copy ofthis [Act] or a summary approved by the [Commission; Department; Service].
(c) An employer may file a complaint and demand for arbitration under this [Act]with the [Commission; Department; Service] to determine whether there is goodcause for the termination of a named employee. At least 15 business days beforefiling, the employer shall mail or deliver to the employee a written statementof the employer’s intention to file and the factors alleged to constitute goodcause for a termination.
(d) The [Commission; Department; Service] shallpromptly mail or deliver to the respondent a copy of the complaint and demandfor arbitration. Within 21 days after receipt of a complaint, the respondentmust file an answer with the [Commission; Department; Service] and mail a copyof the answer to the complainant. The answer of a respondent employer mustinclude a copy of the statement of the reasons for the termination furnished theemployee.
(e) When a complaint is filed, a complainant employee or employershall pay a filing fee to the [Commission; Department; Service] in [the amountof $ ] [an amount not exceeding the maximum filing fee for a civil actionin the courts of general jurisdiction of this State]. The [Commission;Department; Service] may waive or defer payment of the filing fee upon a showingof the complainant employee’s indigency.]

SECTION 6. ARBITRATION; SELECTION AND POWERS OF ARBITRATOR; HEARINGS;BURDEN OF PROOF.
(a) Except as otherwise provided in this [Act], the[Uniform Arbitration Act]
[‹‹ arbitration act of this State]applies to proceedings under this [Act] as if the parties had agreed toarbitrate under that statute. The [Commission; Department; Service] shall adoptprocedural rules to regulate arbitration under this [Act]. The [AdministrativeProcedure Act and other] statutes of this State applicable to the procedures ofState agencies do not apply to arbitration under this [Act].
(b) The[Commission; Department; Service] shall adopt rules specifying thequalifications, method of selection, and appointment of arbitrators. Anarbitrator serving under this [Act] exercises the authority of the state.
(c) Subject to rules adopted by the [Commission; Department; Service], all formsof discovery [provided by applicable state statute, rule or regulation] areavailable in the discretion of the arbitrator, who shall ensure there is noundue delay, expense, or inconvenience. Upon request, the employer shallprovide the complainant or respondent employee a complete copy of the employee’spersonnel file.
(d) A party may be represented in arbitration by anattorney or other person authorized under the laws of this State to represent anindividual in arbitration.
(e) A complainant employee has the burden ofproof that a termination was without good cause or that an employer breached anagreement for severance pay under Section 4 (c). A complainant employer has theburden of proof that there is good cause for a termination. In allarbitrations, the employer shall present its case first unless the employeealleges that a quitting or retirement was a termination within the meaning ofSection 1(8) (iii).
(f) If an employee establishes that a termination wasmotivated, in part, by impermissible grounds, the employer, to avoid liability,must establish, by a prepondevidence, that it would have terminated theemployment even in the absence of the impermissible grounds.

SECTION 7. AWARDS.
(a) Within 30 days after the close of anarbitration hearing or at any later time on which the parties may agree, thearbitrator shall mail or deliver to the parties a written award sustaining ordismissing the complaint, in whole or in part, and specifying the appropriateremedies, if any.
(b) An arbitrator may make one or more of the followingawards for a termination in violation of this [Act]:
(1) reinstatement tothe position of employment the employee held when employment was terminated or,if that is impractical, to a comparable position;
(2) full or partialbackpay and reimbursement for lost fringe benefits, with interest, reduced byinterim earnings from employment elsewhere, benefits received, and amounts thatcould have been received with reasonable diligence;
(3) if reinstatement isnot awarded, a lump-sum severance payment at the employee’s rate of pay ineffect before the termination, for a period not exceeding [36 months] after thedate of the award, together with the value of fringe benefits lost during thatperiod, reduced by likely earnings and benefits from employment elsewhere, andtaking into account such equitable considerations as the employee’s length ofservice with the employer and the reasons for the termination; and
(4)reasonable attorney’s fees and costs.
(c) An arbitrator may make either orboth of the following awards for a violation of an agreement for severance payunder Section 4(c):
(1) enforcement of the severance pay and otherapplicable provisions of the agreement, with interest; and
(2) reasonableattorney’s fees and costs.
(d) An arbitrator may not make any award exceptas provided in subsections (b) and (c). The arbitrator may not award damagesfor pain and suffering, emotional distress, defamation, fraud, or other injuryunder the common law, punitive damages, compensatory damages, or any othermonetary award. In making a monetary award under this [Act], the arbitratorshall reduce the award by the amount of any monetary award to the employee inanother forum for the same conduct of the employer. In making any award, thearbitrator is subject to the rules of issue, fact, and judgment preclusion,which apply in the courts of record in this state.
(e) If an arbitratordismisses and employee’s complaint and find it frivolous, unreasonable, orwithout foundation, the arbitrator may award reasonable attorney’s fees andcosts to the prevailing employer.
(f) An arbitrator may sustain anemployer’s complaint and make an award declaring that there is good cause forthe termination of a named employee. If the arbitrator dismisses the employer’scomplaint, the arbitrator may award reasonable attorney’s fees and costs to theprevailing employee.

SECTION 8. JUDICIAL REVIEW AND ENFORCEMENT.
(a) Either party toan arbitration may seek vacation, modification, or enforcement of thearbitrator’s award in the [court of general jurisdiction] for the [county] inwhich the termination occurred or in which the employee resides.
(b) Anapplication for vacation or modification must be filed within [90] days afterthe issuance of the arbitrator’s award. An application for enforcement may befiled at any time after the issuance of the arbitrator’s award.
(c) Thecourt may vacate or modify an arbitrator’s award only if the court finds that:
(1) the award was procured by corruption, fraud, or other improper means;
(2) there was evident partiality by the arbitrator or misconduct prejudicing therights of a party;
(3) the arbitrator exceeded the powers of an arbitrator;
(4) the arbitrator committed a prejudicial error of law; or
(5) anotherground exists for vacating the award under the [Uniform Arbitration Act] [‹‹arbitration act of this State].
(d) In an application for vacation,modification, or enforcement of the arbitrator’s award, the court may award aprevailing employee reasonable attorney’s fees and costs. In an application byan employee for vacation of the arbitrator’s award, the court may award aprevailing employer reasonable attorney’s fees and costs if the court finds theemployee’s application is frivolous, unreasonable, or without foundation.

SECTION 9. POSTING.
An employer shall post a copy of this[Act] or a summary approved by the [Commission; Department; Service] in aprominent place in the work area. An employer who violates this section issubject to a civil penalty not exceeding [$ ]. The [Attorney General] isauthorized to bring a civil action, on behalf of this State, to impose andcollect any civil penalty arising under this section.

SECTION 10. RETALIATION PROHIBITED AND CIVIL ACTION CREATED.
An employer or other employing person may not directly or indirectly takeadverse action in retaliation against an individual for filing a complaint,giving testimony, or otherwise lawfully participating in proceedings under this[Act], whether or not the individual is an employee having rights under this[Act]. An employer or other employing person who violates this section isliable to the individual subjected to the adverse action in retaliation fordamage caused by the action, punitive damages when appropriate, and reasonableattorney’s fees. A separate civil action may be brought to enforce thisliability. The employer is also subject to applicable procedures and remediesprovided by Sections 5 through 8.

SECTION 11. SEVERABILITY CLAUSE.
If any provision of this[Act] or its application to any person or circumstance is held invalid, theinvalidity does not affect other provisions or application of this [Act] whichcan be given effect without the invalid provision or application, and to thisend the provisions of this [Act] are severable.

SECTION 12. EFFECTIVE DATE.
This [Act] takes effect.

SECTION 13. REPEALS.
The following acts and parts of actsare repealed:

(1) . . . . . . . . . .
(2) . . . . . . . . . .
(3) . . . . . . . . . .

SECTION 14. SAVINGS AND TRANSITIONAL PROVISIONS.
(a) This [Act]does not apply to the termination of an employee within six months after theeffective date of this [Act] based upon the employee’s refusal to enter into anagreement meeting the minimum standards of Section 4(c), which the employer, inthe exercise of good faith business judgement, may impose as a condition ofcontinued employment.

APPENDIX
Note: Instead of the arbitration system providedby Sections 5 through 8 of the preceding text, states may select the followingAlternative A or Alternative B as the means of enforcement.

ALTERNATIVE A
[Section 5. ADMINISTRATIVE PROCEEDINGS. [Insert provisions consigning enforcement of the [Act] to a new or existingadministrative agency, staffed by civil service or other governmental personnel,operating under applicable state statutes. Delete Sections 5 through 8 of thepreceding text and renumber the remaining sections an cross referencesaccordingly.]

Section 6. REMEDIES.
(a) The [Commission; Department;Service] may provide one or more of the following remedies for a termination inviolation of this [Act]:
(1) reinstatement to the position of employmentthe employee held when employment was terminated or, if that is impractical, toa comparable position;
(2) full or partial backpay and reimbursement forlost fringe benefits, with interest, reduced by interim earnings from employmentelsewhere, benefits received, and amounts that could have been received withreasonable diligence;
(3) if reinstatement is not ordered, a lump-sumseverance payment at the employee’s rate of pay in effect before thetermination, for a period not exceeding [36 months] from the date of the order,together with the value of fringe benefits lost during that period, reduced bylikely earnings and benefits from employment elsewhere, and taking into accountsuch equitable considerations as the employee’s length of service and thereasons for the termination; and
(4) reasonable attorney’s fees and costs.
(b) The [Commission; Department; Service] may grant either or both of thefollowing remedies for a violation of an agreement for severance pay underSection 4 (c):
(1) enforcement of the severance pay and other applicableprovisions of the agreement, with interest; and
(2) reasonable attorney’sfees and costs.
(c) The [Commission; Department; Service] may not make anyaward except as provided in subsections (a) and (b). The [Commission;Department; Service] may not award damages for pain and suffering, emotionaldistress, defamation, fraud, or other injury under the common law, punitivedamages, compensatory damages, or any other monetary award under this [Act]. Inmaking a monetary award under this section, the [Commission; Department:Service] shall reduce the award by the amount of any monetary award to theemployee in another forum for the same conduct of the employer. In making anyaward, the [Commission; Department; Service] is subject to the rules of issue,fact, and judgment preclusion applicable in the courts of record in this State.
(d) If the [Commission; Department; Service] dismisses an employee’s complaintand finds it frivolous, unreasonable, or without foundation, the [Commission;Department; Service] may award reasonable attorney’s fees and costs to theprevailing employer.
(e) Upon the complaint of an employer, the[Commission; Department: Service] may issue an order declaring whether there isgood cause for the termination of a named employee. If the [Commission;Department; Service] dismisses the employer’s complaint, the [Commission;Department: Service] may award reasonable attorneys’s fees and costs to theprevailing employee.]

ALTERNATIVE B
[Alternative B would leave the enforcementof the statute to the civil courts. Delete Sections 5 through 8 of thepreceding text and renumber the remaining sections and any cross referenceaccordingly.]

SECTION 5. JUDICIAL REMEDIES.
(a) The court may grant one ormore of the following remedies for a termination in violation of this [Act]:
(1) reinstatement to the position of employment the employee held whenemployment was terminated or, if that is impractical, to a comparable position;
(2) full or partial backpay and reimbursement for lost fringe benefits, withinterest, reduced by interim earnings and benefits received, or amounts thatcould have been received with reasonable diligence;
(3) if reinstatement isnot awarded, a lump-sum severance payment at the employee’s rate of pay ineffect before the termination, for a period not exceeding [36 months] from thedate of the award, together with the value of fringe benefits lost during thatperiod, reduced by likely earnings and benefits from employment elsewhere, andtaking into account such equitable considerations as the employee’s length ofservice with the employer and the reasons for the termination; and
(4)reasonable attorney’s fees and costs.
(b) The court may grant either orboth of the following remedies for a violation of an agreement for severance payunder Section 4(c):
(1) enforcement of the severance pay and otherapplicable provisions of the agreement, with interest; and
(2) reasonableattorney’s fees and costs.
(c) The court may not make any award except asprovided in subsections (a) and (b). The court may not award damages for painand suffering, emotional distress, defamation, fraud, or other injury under thecommon law, punitive damages, compensatory damages, or any other monetary awardunder this [Act]. In making a monetary award under this section, the courtshall reduce the award by the amount of any monetary award to the employee inanother forum for the same conduct of the employer. In making any award, thecourt is subject to the rules of issue, fact, and judgment preclusion applicablein courts of record in this State.
(d) if the court dismisses an employee’scomplaint and finds it frivolous, unreasonable, or without foundation, the courtmay award reasonable attorney’s fees and costs to the prevailing employer.
(e) Upon the complaint of an employer, the court may enter a judgment declaringwhether there is good cause for the termination of a named employee. If thecourt dismisses the employer’s complaint, the court may award reasonableattorney’s fees and costs to the prevailing employee.

C.Discussion
If a decision is made to support thecommissioners’ model act, there are two important sections which should beimproved if at all possible.

1.Cap on Frontpay – Section 7(b) (3) limits frontpay (payment in lieu ofreinstatement to make a wrongfully discharged employee whole until they findanother job) to an absolute maximum of 3 years. This is true even if thearbitrator knows that a wrongfully discharged employee will need more than 3years to find another job.

This is totally inconsistent with the act’s basic premise – elimination oftort damages in exchange for restoration of lost wages and benefits.

This cap should be eliminated.

2.Waiver

Section 4(c) allows employees to waive their statutory rights in exchangefor severance pay, with a statutorily prescribed minimum.

For very senior managers with significant bargaining power this may makesense. Many large corporations negotiate “golden parachute”arrangements with their presidents allowing the board to replace him or herwhenever they believe it will benefit the company in exchange for generous(generally 7 figure) severance pay.

Unfortunately, the waiver provision is not limited to those with bargainingpower. Any company can require all employees to sign a waiver containing thestatutory minimum severance as a condition of employment. This minimum is worthfar less for most people than the statutory rights being waived.24

The waiver section should be limited to “arms length agreements betweenan organization and its employee in which the employee receives considerationfor the waived statutory rights which the parties reasonably believe to be ofequal or greater value.”

3. Alternate Dispute Resolution Systems

Section 4 (i) allows employers and employees to agree to substitute analternate dispute resolution system for that provided by the act. This is notnecessarily a bad idea. Some employers and employees might genuinely agree on asystem they both preferred.

However, there is nothing in the act that would prevent an employer fromrequiring all prospective employees to agree, as a condition of employment, toan “arbitration” system that is no better than a kangaroo court.

It would be best to drop this provision completely. If there is trulyagreement that some other dispute resolution system is preferable, the partieswill use it voluntarily.

If this cannot be accomplished, the act should be modified to provide thatany alternate system must contain provisions for procedural and substantivefairness which are comparable to those provided by the act, and that agreementto use the alternate system can not be a condition of employment.

4. The comments to section i (8) allow termination for off-duty conduct ifit is relevent to job performance, business reputation, or similar concerns.

This is far too broad. Off­duty smoking and drinking are “relevantto” job performance for jobs requiring physical fitness. But an employeewho smokes off­duty and still passes the fitness exam should not lose hisor her job.

This language is not needed, and should be dropped.

For a complete discussion of employer control of off­duty conduct, seeACLU legislative brief on lifestyle discrimination.

LEGISLATIVE PROSPECTS

Several factors will work in favor of the passage of unjust dismissallegislation. The most powerful is that most people, including most legislators,recognize the injustice of an arbitrary firing.

In addition, there are influential allies. Organized labor generallysupports wrongful discharge legislation. The national AFL-CIO supports thecommissioners’ model act (with some reservations). The situation variesgreatly, however, from state to state, and union to union. Unofficial contactswith the Americans for Democratic Action, the National Council of Churches, andconsumer groups indicate that they will be supportive. However, these groupsare not likely to make this a priority issue.

The major opposition will come from business groups, principally the Chamberof Commerce. This can be blunted in two ways:

1. Learning the issue well enough to effectively counter their arguments tothe legislature (see questions & answers and bibliography).

2. Enlisting other business leaders to testify in favor of the bill (thishas been done in at least one state).

Business opposition will be greatly reduced if the commissioners’ model ischosen. The Chamber of Commerce did not oppose this model when thecommissioners were considering it, and some management spokespeople have quietlysupported it.

The position of the bar depends on the model that is chosen. The AmericanTrial Lawyers Association. (ATLA) supports the approach of the ACLU’s model, butare adamantly opposed to the commissioners’ approach because it requires theemployee to arbitrate instead of having a jury trial and eliminates tortdamages.

The American Association of Retired Persons will support the ACLU model. They oppose the commissioner’s model. They oppose the commissioner’s modelbecause the 3 year cap on severence pay is unfair to older people, who have themost difficulty finding employment. If this cap were elimited, AARP mightbecome an effective ally.

The deciding influence may well be public opinion. A well coordinatedprogram to involve community groups and create positive media exposure could bethe deciding factor.Bibliography

A great deal has been written about the issue of unjust dismissal. Below isa list of some of the key issues and some works that deal with them well.

BIBLIOGRAPHY

1.Why is a statute necessary?
Summers, “Individual ProtectionAgainst Unjust Dismissal: Time for a Statute,” 62 Va. L. Rev. 481 (1976)

2.Why is this a civil liberties problem?
Maltby, “Why WorkplaceRights is a Civil Liberties Issue,” ACLU Workplace Document Bank #G10.

3.What are the key issues involved in drafting a statute?
Perritt, “EmployeeDismissal, Law and Practice” (Wiley-1984)

4.How does arbitration work?
“Labor Arbitration -Procedures and Techniques,” American Arbitration Association, 140 West 51st Street, New York, New York 10020

NOTES:
1 For exactnumbers, refer to U.S. Bureau of Labor Statistics.
2 A few employees, mostly top executives, have individualemployment contracts which provide some protection. Their numbers, however, areinsignificant.
3 Payne v. Western and Atlantic R.R. Co. 81TENN. 507, 518-19 (1884)
4 Pierce v.Ortho Pharmaceutical Corp. 166 N.J. Super 335, 339 a 2d 1023, 1026(1979)
5 Bell v. Faulkner, 75.5W. 2d 612 (Mo. App.1934)
6 Fortune v. National CashRegister Co. 373 Mass. 96,364 N.W. 2d 1251 (1977)
7 Hinrichs v. Tranquilaire Hospital, 352 So 2d 1130 (Ala. 1977)
8 Stieber & Murray, Protection AgainstUnjust Discharge: The Need for a Federal Statute, University of Michigan LawReform Vol. 16 No. 2, 1983
9 Brenner, Harvey (Dr.), Health Costs andBenefits of Economic Policy, International Journal of Health Services, Volume 7,Number 4, 1977.
10 Testimony of Professor Clyde Summersbefore the Labor Committee of the Pennsylvania House of Representatives,September 17, 1986.
11 See Law ofAugust 10, 1951, An act to provide protection against unwarranted dismissals,BGII 499, translated in 1951I.L.O. Legislative Series 1951 Ger.F.R. 4. (Germany) See Article 27, Section 1 of the Japanese Constitution, andArticle 20 of the Labor Standards Law (as interpreted by Japanese courts).
12 Maltby, “The Decline ofEmployment at Will; A Quantative Analysis,” Labor Law Journal, January 1990(Also available as ACLU Workplace Document Bank #DP6).
13 The exact boundaries of these exceptions vary slightlybetween states. The variations, however, are minor.
14 Toussaint v. Blue Cross & Blue Sheild of Michigan 408Mich. 579,292 N.W. 2d 880 (1980)
15Frampton v. Central Indiana Gas Co., 260 Ind.249, 297 N.E. 2d 425 (1973)
16 Peterman v. Teamsters Local 396, 174Cal. App 2d. 184, 344P.2d 25 (1959)
17Nees v. Hocks, 536 P. 2d512(1975)
18 Marin v. Jacuzzi, 224 Cal. App. 2d.
19 Bell v. Faulkner, see Note 5.
20 Percival v. General Motors Corp. 539F.2d. 1126 (8th Cir. 1976)
21Montana Statutes Sec. 39-2-901.
22California Senate Bill 1348 (1985 Term); Michigan House Bill 4665 (1979 Term)See also Statutes of Canada 26-27 Elizabeth II (1978)
23 Dertouzos et. al., The Legal and Economic Consequences ofWrongful Termination, Rand Institute for Civil Justice 1988.
24 For an economic analysis of thecomparative value of META severance pay and META damages generally, see ACLUworkplace Document Bank # DP 20.

Produced by the ACLU National Task Force on Civil Liberties in theWorkplace

The ACLU is a District 65, UAW AFL-CIO Shop