The law governing employment in America

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No one is prepared for an unexpected job loss and brings about the most traumatic and stressful experience workers can ever withstand.[1]If that experience isn’t challenging enough, employees who feel wrongfully terminatedface a nearly impossible uphill battle to get access to justice.Due to an unclear public policy, high burden-shifting standards, and faulty perceptions of protections against wrongful discharges, aplaintiff’s recourse to an adverse action is arduous and unfairly biased towards defendants. Favorable employer lawsundermine the integrity and fairness of our judicial system. Most of the laws, despite being protective of the employee, have loopholes that provide employer’s social and financial power a platform to prevent consequences of punishing and terminating workers illegally.[2] The laws challenge employees to prove their claims even when they are apparent. Sometimes workers have to unwillinglyrely on anti-discriminatory statutes even where there is no discrimination issue during termination.[3] Employees, therefore, end up losing justice to suffer more consequences to the extent that potential workers who plan to seek justice through the judicial system drop the plan. There is a need through reforms through the implementation of a federal wrongful termination statute that more adequately addresses the inherent power imbalance between plaintiff employees and defendant employers.

The law governing employment in America has moved forward a great deal in the last century and a half. One hundred fifty-four years ago, many states had slaves. One hundred years ago, employees had no right to bargain collectively; they were guaranteed neither a minimum wage nor a humane schedule, Jim Crow and Black code laws were enforced in all its territories and employees enjoyed no protection against discrimination of any kind. “The United States has recognized both that employees have rights vis-a-vis employers, and that those rights should be protected by law. Consequently, Congress has guaranteed the right to bargain collectively and has taken great strides toward eliminating discrimination. Yet the nation clings tenaciously to the ancient, employment contracts which favored and continues to favor employees without a legislative update. Millions of Americans serve solely at the pleasure of their employers, subject to discharge for a good reason, a bad reason, or no reason at all. Courts have made some inroads into this chaos, but the time has now come for a statutory solution.”[4]

This paper sets out to identify needed reforms in statute language, time limits, and burden-shifting standards.Parts 1-3 outline the procedural and substantive law regarding wrongful termination, inequities inherent in those laws, and modifications necessary to make them equitable for plaintiffs. Part 4 – outlines a what a well-drafted employment termination statute should do: (1) deter employers from wrongfully discharging employees, (2) punish employers who wrongfully discharge employees, (3) make-whole employees who are wrongfully terminated, (4) provide access to a tribunal for all employees who have been wrongfully discharged, and (5) protect employers from specious claims by employees who were terminated for good cause.”[5] And finally, Part 5 –a comparison of the United States to the other industrialized nations. The aim is to explorer and shows how slight adjustment into the current employment laws on wrongful termination can enable a balanced judicial process that guarantees employees justice

Bias on the Substantive Law Applicable to Wrongful Termination

Unclear Public Policies and standards on Employment Termination

Much of the angst surroundingwrongful termination claimsarise out ofthe lack ofclear legal standards. As wrongful termination cases aremostly matters of state law, there is a lack of consistency across jurisdictions, and some states have failed to provide clear guidance on essential elements of the law. For example, in Pennsylvania, the “Supreme Court has yet to delineate the elements required to prove a prima facie case,”[6]let alonepublic policy. “According to the employment-at-will doctrine, an employer can terminate an employee’s job at any time, for any reason, or no reason at all.”[7] “A long-standing exception to the at-will employment rule is the public policy exception. This policy exception rule states that an employee may not be terminated in a way that violates a public policy embodied in a statute, regulation, ordinance, or constitution.”[8] Lack of public policy, in that case, makes the at-will doctrine favor employers because employees do not have a standard even to raise a claim of wrongful termination.

“The Pennsylvania courts require that the statement of public policy be clear. Many wrongful termination claims have failed for lack of clear public policy.”[9] “Exceptions to the at-will employment rule have been recognized only where discharges of at-will employees would threaten clear mandates of public policy.” In essence, plaintiffs lose merely because the legislation has not created a clear policy. To make matters worse,the judicial branch in Pennsylvaniais unwilling to “constitute itself the voice of the community in so declaring.”[10]Pennsylvania is one of the states where wrongfully terminated employees fail to get justice due to the inability to establishprima facie since there are no exceptions to the at-will doctrine. The court requires a plaintiff to show that the defendant violated a law,but such states have no employment laws which workers can argue from during litigation.[11] Although the society recognizes that terminating through the implied contract and other factors are wrong, the legislature has not added such provisions in the at-will doctrine. The various employment laws as a result, favors employer’s since there lacks apparent exceptions which employees can defend

“In the absence of a statute, wrongfully discharged employees are left in a state of chaos and uncertainty. First, they must find an attorney who is familiar with the various theories of recovery in employment-at-will cases. The attorney is then faced with the task of searching employment manuals, pension plans, letters, and other documents to find some basis for a claim premised on a written contract. Even if there appears to be some basis for a claim of wrongful discharge in violation of public policy, there is no guarantee that the court will recognize the public policy at issue.”[12] The policy must come from a statute which guides courts on what a state recognizes as wrong employment contract behavior.

Remedies:

Currently, there are no know states which have a proper solution for unclear public policies in substantive law. States like Illinois and Chicago have adopted the Model Employment Termination act to have all states which subscribe to the model apply public policies and good cause doctrine as opposed to employment at will, which other states recognize.[13] Through the act, even if a member state does not have an exception in its employment termination act, the court can use an exemption from another state subscribing to the model.[14] The approach ensures that employees do not suffer from the state’s unclear public policies but borrows those which other states enact.[15] It is an appropriate remedy because employees do not suffer from a lack of well-established employment law in one state, and there are leveraged policies to cover all wrongful factors leading to termination that may arise. However, the model also does not have clear public policies and only talks of good cause for termination without even outlining the various good causes.

Although the Model Employment Termination Act still does not solve the challenge of unclear public policies, it can be a framework for remedy with adjustment of the good cause.[16] The employer cause can replace public policies, outline some, and continue recommending that any member state will borrow public policies that are outside its jurisdiction. Even though the policy can be good other states might be reluctant to join the uniform law model due to political differences, objectives, and motivation of the legislatures and executives. The federal government can pick the model as an extensive national policy that states have no choice but to adopt. It will even solve the challenge of unclear policy more because many states will contribute to the basket of public policies to widen the scope for employees’ litigation.

Part 2: Burden Shifting Standards.

The plaintiff’s challenges in wrongful termination do not end at substantive laws but extend to procedural law, making it even hard to get remedy in the judicial process. The procedural law also favors the defendant by making the substantive process of challenging illegal termination unsuccessful. [17]Challenge in procedural law, especially structures which favor employers, makes it hard for employees to get constitutionally protected employment rights.[18] One of the biases in procedural law is burden-shifting standards, which appear in the case following a price Waterhouse mixed-motive framework or what is known asthe McDonnell-Douglas burden-shifting framework.[19] Through the structure, the burned to persuade the court shifts to the plaintiff as opposed to the defendant under typical civil cases.

“In both wrongful and retaliatory discharge claims, the plaintiff has the ultimate burden of proving that he or she was terminated unjustly. The rule is that once the plaintiff has demonstrated a prima facie case, the burden of going forward with the evidence shiftsto the employer to show that its reasons for the termination were proper and legitimate. If the employer does so, the employee is then burdened with establishing that the proffered reason is pretextual or not worthy of belief.”^[20]And in some circumstances, “plaintiffs must disprove the employer’s proffered legitimate reason and produce sufficient evidence from which a jury could conclude that discrimination was the determinative reason for employer’s actions.”[21] The framework puts the plaintiff under two burdens, one to prove prima facie, and second, two prove that the defendant’s claim as the cause of termination is not valid.[22] Persuading and providing prove is the tricky part of the case, and in most cases, there is no direct evidence hence, disadvantages the defendant.[23] The McDonnell-Douglas burden-shifting framework violates Federal Rules of Civil Procedure (FRCP) placing adding the defendant burden on the plaintiff.[24] Such responsibilityusually is very high that the chances of losing a case are very high. Burden shifting, as a result, denies employees a chance to get remedy for wrongful termination which the substantive law stipulates.

Remedies:

Several states have considered a more equitable approach to solving wrongful termination that does not place the employees on very high burdens to prove their and employers’ claims. Montana and Puerto Rico are examples of the states with a unique approach of arbitration incorporated in the procedural law of wrongful termination.Taking Montana as an example,it has the Montana Wrongful Discharge From EmploymentAct, which despite prescribing clear public policies, there are several strategies of dispute resolution.[25] The act recognizes internal procedures of solving the wrongful termination dispute.[26] Further, the law allows arbitration when the case gets to the court.[27] The two provisions attract employment contracts with internal procedures to solve wrongful termination. Through internal processes and arbitration, it is hard for the employee to have a double burden since the two parties will discuss what transpired. The employer, in that case, does not add other reasons which will appear legal requiring the employee disapprove and continue defending the initial prima facie.

Incorporation of the arbitration system in the procedural law is a remedy to burden-shifting standards since it allows employers to negotiate on the act of wrongful termination without having the burden to persuade against there being a lawful termination. Such standard would be valuable if the federal enforces it as opposed to allowing individual states to implement. Individual states would be slow because legislatures have different opinions and would take time to agree on arbitration. Furthermore, legislatures in individual states own most of the employments hence would be reluctant to implement a standard that favors employees.

Inadequate Remedies to The existing unpredictable Termination Laws

The existing procedural laws do not provide employees with sufficient remedies that would motivate them to file a case against employers who wrongfully terminate them.[28]Some of the best remedies which would make employees commit to litigation cost and time are not present in the common law, including reinstatement.[29] Common law recognizes that the relationship between an employer and an employee is no longer strong enough to support a good working environment for the two after a wrongful termination. Lack of reinstatement leaves the employees suffering because they have to endure un unpredictable times before they get another employment.[30]Furthermore, the court computes severance payment where reinstatement is not possible from the award date. It fails to account for the time since termination.Failure to have back pays an inadequate remedy because employees suffer from financial constraints from the time of dismissal.[31]Although there is compensation for wrongful termination, it is sometimes not enough to support the employee to cater for the litigation fee as well and compensate for the time out of employment.

Another way through which the current common law does not adequately award employees is the failure to consider attorney cost.[32] A case on wrongful termination is civil and should not subject the plaintiff to extra charges especially where the court finds the defendant on the wrong.[33] Employees pay for attorney fees on a case which employers developed intentionally. The current common law subjects employee to paying the costeven though cases take long and plaintiffs do not have any pay during the time.[34]Although there is an award of the punitive damages, the attorney fee is usually very high due to the lengthy case duration and other awards might not be sufficient to make the burden lighter.[35]Failure to award plaintiffs attorney fees amounts to inadequate remedy because the absence of the wrongful termination would not have led to such charges.

Bibliography

Struve, Catherine T. “Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions.” BCL Rev. 51 (2010): 279.

Perry, Dawn S. “Deterring egregious violations of public policy: A proposed amendment to the Model Employment Termination Act.” Wash. L. Rev. 67 (1992): 915.

Emden, Christopher J. “Subverting Rule 56-McDonnell Douglas, White v. Baxter Healthcare Corp., and the Mess of Summary Judgment in Mixed-Motive Cases.” Wm. & Mary Bus. L. Rev. 1 (2010): 139.

Federal Rules Of Civil Procedure (2018).

Montana Wrongful Discharge From Employment Act (1987)

Kenneth A. Sprang, Beware The Toothless Tiger: A Critique of the model employment termination act., 43 Am. U.L. Rev. 849, 850 (1994)

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

St Antoine, Theodore J. “The Making of the Model Employment Termination Act.” Wash. L. Rev. 69 (1994): 361.

Perry, Dawn S. “Deterring egregious violations of public policy: A proposed amendment to the Model Employment Termination Act.” Wash. L. Rev. 67 (1992): 915.

Swift, Kenneth R. “The public policy exception to employment at-will: Time to retire a noble warrior.” Mercer L. Rev. 61 (2009): 551.

Kenneth A. Sprang, Beware The Toothless Tiger: A Critique of the model employment termination act., 43 Am. U.L. Rev. 849, 850 (1994).

Sprang, Kenneth A. “Beware the Toothless Tiger: Critique of the Model Employment Termination Act.” American University Law Review 43, no. 3 (1994): 3.

[1]Kenneth, Sprang A. Beware The Toothless Tiger: A Critique of the model employment termination act., 43 Am. U.L. Rev. 849, 850 (1994).3.

[2]Nicole, Porter B. “The Perfect Comprect Compromise: Bridging the Gap Between A omise: Bridging the Gap Between At-Will Employment and Just Cause.” Nebraska Law Review, 87.1 (2008):62.

[3]Nicole, Porter B. “The Perfect Comprect Compromise: Bridging the Gap Between A omise: Bridging the Gap Between At-Will Employment and Just Cause.”Nebraska Law Review, 87.1 (2008):62.

[4]Sprang. Beware The Toothless Tiger, 4.

[5] Sprang. Beware The Toothless Tiger, 5.

[6]2 Unjust Dismissal § 10.39 (2019)

[7]1 Business Torts § 3.01 (2019)

[8]Id

[9]2 Unjust Dismissal § 10.39 (2019)

[10]Shick v. Shirey, 716 A.2d 1231 (Pa.1998).

[11]Kenneth,Swift R. “The public policy exception to employment at-will: Time to retire a noble warrior.” Mercer L. Rev. 61 (2009): 551.

[12]Sprang. Beware The Toothless Tiger, 3.

[13]Dawn, Perry S. “Deterring egregious violations of public policy: A proposed amendment to the Model Employment Termination Act.” Wash. L. Rev. 67 (1992): 915.

[14]Perry. Deterring egregious violations of public policy, 917.

[15]Theodore, St Antoine J. “The Making of the Model Employment Termination Act.” Wash. L. Rev. 69 (1994): 361.

[16]Perry. Deterring egregious violations of public policy, 917.

[17]Sprang. Beware The Toothless Tiger, 5.

[18]Sprang. Beware The Toothless Tiger, 5.

[19]McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[20]82 Am Jur 2d Wrongful Discharge § 214

[21] Matthew Scott, Reeves v. Sanderson Plumbing Products: The Emperor has no clothes- Pretext Plus is alive and kicking, 37 St. Mary’s L.J. 179,182-183 (2005)

[22]Christopher,Emden J. “Subverting Rule 56-McDonnell Douglas, White v. Baxter Healthcare Corp., and the Mess of Summary Judgment in Mixed-Motive Cases.” Wm. & Mary Bus. L. Rev. 1 (2010): 139.

[23]Emden. Subverting Rule 56-McDonnell Douglas, 140.

[24] Federal Rules Of Civil Procedure (2018).

[25]Montana Wrongful Discharge From Employment Act (1987)

[26]Montana Wrongful Discharge From Employment Act (1987)

[27]Montana Wrongful Discharge From Employment Act (1987)

[28]Perry. Deterring egregious violations of public policy, 916.

[29]Perry. Deterring egregious violations of public policy, 916.

[30]Catherine, Struve T. “Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions.” BCL Rev. 51 (2010): 279.

[31]Struve. Shifting Burdens: Discrimination Law, 281.

[32]Struve. Shifting Burdens: Discrimination Law, 281.

[33]Struve. Shifting Burdens: Discrimination Law, 280.

[34]Struve. Shifting Burdens: Discrimination Law, 280.

[35]Perry. Deterring egregious violations of public policy, 915.

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The law governing employment in America