Saturday, July 27, 2013
It is always difficult to explain why you lost a job you held for 10 years. Melissa Nelson, the former dental assistant to James Knight of Fort Dodge, Iowa, can now show any potential employer a court transcript in which she was described as a stellar employee but was fired because Knight and his wife believed his attraction to Nelson had become a threat to their marriage.
Employers do not need a good reason to fire an employee. Most employers include a statement in their written policies or job application material that their employees work at-will. An at-will employee can be fired at any time and for any reason — with exceptions for race, religion and gender, complaining about an illegal activity or for exercising a variety of legal rights. The trouble is that it is very difficult for an employee to prove any of those exceptions.
Last week, Iowa’s Supreme Court ruled that Nelson’s termination was legal and her claim of gender discrimination failed because her boss was focused on one person in particular and not all women. The other women in his employ must have sighed with relief when Knight made that clear.
This case has been lighting up the Internet because it just seems so very unfair. An employee loses her income, can’t pay her bills and can’t easily explain why she lost her job. Knight might have tried to get her another job with one of his friends, or he could have explained his problem to her and kept her on the payroll a few months while she looked for another position while still employed.
The employment at-will law does a great job of protecting the boss, but it leaves the employee completely vulnerable to a capricious employer or the fears of his wife.
Over my career I was involved in firing employees for theft several times and for terrible job performance. And once I fired a woman who turned a three-week vacation into eight weeks and expected us to believe she just lost track of time. There are many valid reasons to fire an employee.
But I have also seen solid, reliable employees fired because the new boss wanted to create openings so his friends could have the jobs. And I have seen a man who was just an inch over 5-feet tall do everything he could to manufacture problems so that he could fire his tall employees. He wouldn’t provide a reference, and those employees had a struggle to get another job. Who is going to believe you were fired because you were too tall?
When massive layoffs began nationwide in the winter of 2009 and large companies were terminating thousands of people at a time, businesses suddenly realized they had tens of thousands too many employees. Throughout the winter and spring of 2009, millions of employees lost their jobs, most often through no fault of their own.
What the recession has made clear is that it is much easier to get a job if you have a job. And when a good employee is fired for being too attractive or too tall — or because he asks too many difficult questions or she is so good at her job she makes the boss look bad — that person will become labeled as someone who was fired. And good employees aren’t fired, are they?
At a Strategic HR Summit held in July, Mel Klieman of Humetrics told the assembled human resources professionals how to recruit the best employees: “We tend to look for people who are looking for work, but we should be looking for people who are looking for a better job. Where are the eagles? They are working.”
The combination of employment-at-will laws and a belief that there must be something wrong with anyone who is unemployed has made it very difficult for many to re-enter the job market.
Six states have recognized this and they have added another exception to at-will employment. Montana, Wyoming, California, Nevada, Massachusetts and Hawaii have introduced “Covenant of good faith and fair dealing” exceptions.
Their explanations for the need to do this are simple and clear: “ We are a nation of employees ... the subsistence of life is in another man’s hands ... to require employers to demonstrate valid grounds and methods for an employee’s discharge does not unduly restrict employers; it merely provides some balance of power.”
Virginia Detweiler, based in Walla Walla, provides human resource services and management training to businesses in southeastern Washington with her consulting firm HR Partner on Call. Her columns are written as a service to employers and employees and rely on reader questions and comments for topical material. Contact her by email at email@example.com or phone at 509-529-1910. Because of job and employer sensitivities, care is taken to protect identities.