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Employment discrimination
Hiring and employment
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Attorney directory
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Employees In the Private Sector
Public sector employers, public sector employment, best companies for employees
Generally, most state law assumes that all employment condition of people
in the private sector are considered “at will” which practices the principle
that the employer can dismiss the employee even without reason or enough
notice and the employee on the other hand can also leave his/her employment
without having to give any notice or reason at all. Simply put, regardless
of the employee’s performance, the employer can boot out the employee
as long as he has not committed any illegal act towards the employee.
Similarly, the employee cannot be coerced to continue working for a company.
It is widely accepted that employment not covered any labor unions as
well as those that are in private firms continue at the mutual behest
of both parties (employee and employer) and can be terminated anytime.
So if an employee loses his/her job, there could be some benefits coming
in through the unemployment benefits, but that’s about it. Because of
the ‘at will’ principle regardless of the reason for the employee’s termination,
the employer will not be held accountable for illegal dismissal.
The reasons for dismissing an employee can be as frivolous as personal
dislike of the individual or because he/she wants a relative or a friend
to take the position or setting ridiculously high expectations which is
almost impossible to deliver. Still, the dismissal is still deemed within
the employer’s legal rights. The employee could have been moving heaven
and earth to do an outstanding job, but if the employer wants him/her
out, he/she can do so.
It is a common belief that employers are legally bound to do right by
their employees and that they cannot dismiss an employee without justifiable
reason. Sadly, the law says differently. The principle of “at-will employment”
made it easier for employers to fire employees whenever they feel like
it. In the United States, almost all the states with the exception Montana,
Puerto Rico, and the Virgin Islands, have no laws sanctioning unfair dismissal;
thus private employees who do not belong to a union have become easy victims
as there are no legal means of protecting them from these kinds of employers.
Contrarily, industrialized countries in Western Europe have laws protecting
employees from unwarranted dismissals.
There are some exceptions to ‘at will employment’ which is worth mentioning.
Observers noted that adherence to this principle is already on the wane
and have been provided with so many exclusions that has made the rule
almost unrecognizable. Employment contracts may include provisions on
unfair and subjective dismissals. A lot of state and federal laws have
been promulgated to restrict unfair and discriminatory dismissals. A classic
example is firing a woman just because of her gender is illegal. Another
good example is discrimination against creed or religion. Jury duty is
also an above board reason to take time off and cannot be used as a ground
for termination. We will talk about these exceptions in detail in the
following sections.
Employees Covered by Labor Unions
The rights and benefits of the of the employees who are members of a labor
union is determined through the collective bargaining agreement, more
popularly known as CBA. Most decisions that involve union employees will
depend on the negotiated rights and benefits under the CBA. This will
include personnel actions such as dismissal, diminution of benefits and
downgrading of position.
Generally, labor union employees are not covered by the ‘at will’ principle.
Their CBA protects them and have their own rules and regulations as regards
to discharging of disciplinary action. The CBA considerably restricts
the employer’s power to dismiss employees whimsically. Generally, the
employer should have a solid reason to be able to dismiss an employee.
Labor unions have a set grievance method which can contest the employer’s
decision to dismiss him/her. There are procedures to be followed before
an employer can finally hand the employee his/her walking papers. First
there should be verbal warnings, then written warnings, suspension and
ultimately dismissal.
It is incumbent upon the employer to allow union members to apply their
grievance process to contest actions regarding their employment. When
the issue between the both parties cannot be resolved, this is the time
when the union employs the services of a third party arbitrator for an
impartial, final resolution. Arbitrators generally have the authority
to put back the employee to its position regardless if it they will be
awarded with back compensation or not and this will be implemented by
the court.
It is the right of the union members to know and understand their contract.
The member can seek the assistance of a union officer or representative
to explain the contract’s provision in simpler terms. The union is established
to hold up the rights and benefits of the members and members should be
well aware of these rights.
Civil Service Employees
Government employees are protected by their civil service rights against
illegal dismissal which is a violation of the Constitution of the United
States or the state where they are employed. Oftentimes, the employees’
various rights such as right to practice their religion, freedom to speak
their minds, unlawful search and confiscation of properties are violated
during dismissal from employment. Sometimes there are property or liberty
interests that come with the position which the government has no right
to get without due process. This simply means that the government has
to advise the individual of the charges against the employee and allow
him/her a chance to defend himself/herself against those charges prior
to dismissal. If the dismissal can negatively affect prospective employment
opportunities, then the employee has the right to a hearing to clear his/her
name.
On the other hand, government employers set work guidelines to make sure
that their agency will function smoothly and render the service which
is expected of them to uphold the public confidence and the agency’s good
image. These rules could consequently limit a public employee’s manner
of speech and general behavior. These rules are deemed legal if they aim
to protect the interest of the government over the individual’s interest.
If the government employee’s unbecoming conduct affects the competency
of the agency and cause its reputation to be tarnished, then this is a
definite ground for dismissal.
Generally, civil service employees cannot be readily dismissed except
if the employer has established a solid cause and the employee’s dismissal
will serve the interest of the agency. Government employees who are not
civil service eligibles are not provided with the same protection against
dismissal. However there are also laws that prohibit unjust dismissal
or their employment contract can include a clause that gives them protection
from such acts.
Civil service employees who have been terminated illegally and have been
approved for regularization or those who are in the ‘excepted or competetive
service’ and have been in the same position for two years can file a petition
in the MSPB or Merit Systems Protections Board of the United States. The
petition should be filed not later than 30 days from dismissal date. If
the employees do not meet these conditions, they can still bring their
case to Office of Special Counsel of the United States if they deem that
the reason for their termination is revenge because of exposing an illegal
activity of a co-worker or the boss. If the termination is due to prejudice
against race, creed, nationality, gender or age, then the petition should
be filed in EEO or Equal Employment Opportunity represenative of the agency
not later than 45 days from date of dismissal. Generally states have the
same administrative group which deals with petitions of employees under
classified service or state civil service.
Government employees who belong to a labor union are protected by labor
contracts and they too have a different option to seek third party arbitration.
Some classifications of public employees do not have a protection mechanism
against illegal dismissal. Such employees are those that are political
appointees who could remain in the positin as long as he/she still finds
favor from the one who appointed him/her. There are also the policy-making
employees and those who are in certain positions that require great trust
or due to political affiliations. Their services can always be terminated
without notice or simply for political motives.
Independent Contractors
Real independent contracts are not employees of the company. State and
federal laws regarding employment protection are not applicable to independent
contracts and self-employed individuals. This is just logical because
the company does not control the working schedule, work methodology, time,
performance and working environment of these people, such that there is
no employer-employee relationship here. When issues employment issues
arise, the court will normally asses if the individual is really financially
independent or if he/she is economically dependent on the company.
Temporary Employes
Temporary employees are those who are employed by employment agencies
and assigned to certain worksites to render temporary services and generally
not regarded as employee of the ste employer. Be that as it may, a lot
of times these employees become victims of unfair and unlawful acts courtesy
of the co-employer. Unfortunately temporary employees do not have the
basic benefits and security of tenure that most regular employees enjoy.
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