The recruitment and selection process is complete, and a new employee has been hired successfully by the library. That person has filled out the I-9 forms and reported on time for the first day of work. Now begins the employment relationship between the library and the new employee, a relationship that will invariably end in termination, either voluntary or involuntary.
It may seem incongruous, having just selected a new employee, to be thinking about termination. But it is an important part of the employer- employee relationship and an important aspect of establishing the employment arrangement. There are essentially two types of employment arrangements: contractual and at-will. In the case of contractual employees, the rights of both parties to terminate are quite clear. Those rights are spelled out in the contract and by the policies of the institution. In the case of at-will employees, however, the extent to which employers are free to dismiss employees and the rights of those dismissed employees have not been established in any final sense by the U.S. legal system.
Contractual Employees
In public libraries, those individuals with some type of professional status are often contractual employees. The employer-employee relationship is defined by the contract and by the professional staff handbook. In many instances, the policies outlined in the contract and handbook have evolved to the point where they are very similar to those of other libraries.
Library employees may also be represented by a union. Almost any type of union may attempt to organize a library. The American Federation of State, County and Municipal Employees(AFSCME) represents many public-sector employees. Depending on the size and nature of the bargaining unit, library employees may be part of a larger unit or may have a separate library employee bargaining unit. The union may also represent only certain groups or classes of library employees. In such cases, the management-employee relationship is governed somewhat by the union contract agreed to by both parties.
Employment At-Will
Typically, staff in libraries do not have contracts and therefore are what is known as at-will employees. An at-will employee is any noncontractual employee employed at the will of the employer and the employee. Either party is free to terminate the relationship for any reason at any time. The employee is free to leave for whatever reason and need not give notice. The employer, within certain restraints, can end the relationship through layoff or termination Traditionally, state and federal courts have supported an employment-at-will rule that specifies that an employer in a private institution can discharge an employee in the absence of a written agreement. This rule is based on the assumption that the employee can also terminate at any time without notice. Legislators have gotten into the act and passed laws making what was considered unfair practice by the employers into illegal practice. The concept of "wrongful discharge" was developed to protect those employees who were being unfairly treated by employers. As a result, the employment-at-will rule is being modified by the courts because there are now specific situations in which at-will discharge is illegal.
Wrongful Discharge
The employer who unjustly discharges an employee may face a wrongful discharge suit. It has been estimated that, win or lose, the average employer charged with wrongful discharge spends $80,000 to defend itself. An employer can be charged for wrongful discharge under any of the following conditions:
The employee is fired in violation of the law.
The employee is fired in violation of public policy.
The employee's actions were safeguarded by whistle-blower protections.
The employment relationship was covered by an implied contract.
The employer had a tacit duty, because of the history of the employment relationship, to deal with the employee fairly and in good faith.
Fired in Violation of the Law
At will implies that either the employee or the employer can end the relationship for any reason. That is essentially true for the employee but not for the employer. Even though the staff member is an at-will employee, that person is protected by the provisions of employment law. For example, the Civil Rights Act of 1964, the National Labor Relations Act, the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), and the Americans with Disabilities Act (ADA) all protect the employee from illegal discharge.
The Civil Rights Act of 1964 prohibits discrimination or discharge on the basis of race, sex, religion, disability, age, marital status, color ancestry, or national origin. The National Labor Relations Act is designed to protect the employees' right to unionize and ensure that they will not be disciplined or discharged for attempting to organize. The aim of the Fair Labor Standards Act is not only to guarantee employee rights to certain wage and hour considerations but also to protect employees from retaliation for asserting those rights. The Occupational Safety and Health Act is intended to guarantee a safe workplace and to protect employees who file safety-related complaints with the Occupational Safety and Health Administration from disciplinary actions, including discharge. The Americans with Disabilities Act, as well as many state and local laws, prohibits employment discrimination against people with disabilities, including those with AIDS and HIV infection.
Fired in violation of Public Policy
An at-will employee cannot be disciplined or discharged in violation of public policy. For example, it is in the public interest that employees serve on juries when called. In Hodges v.S. C. Toof & Co. (1990), a former employee was awarded damages after being demoted and subsequently fired for a 13-week absence for jury duty. It is also in the public interest that employees obey the law, so at-will employees cannot be fired for refusing to break the law at the employer's direction. In Sargent v. Central National Bank & Trust (1991), the termination of a bank auditor was found to be a wrongful discharge because he was fired for refusing an order to destroy or alter an audit report. The general rule was established in Shaffer v. Frontrunner, Inc. (1990), 3 when the Ohio Court of Appeals said, "There is an exception to the at-will employment doctrine…for wrongful discharge in violation of public policy."
Fired in violation of Whistle-Blower Laws
At-will employees cannot be fired for reporting safety violations in the workplace or reporting their employers for breaking the law. These protections are guaranteed under whistle-blowing laws. For example, in Haynes v. Zoo logical Society(1990), an animal keeper was awarded damages when the zoo that employed her demoted her for reporting unsafe conditions relating to a bear attack. Other whistle-blower laws protect employees from discipline or discharge for filing workers' compensation claims or for asserting other rights guaranteed by employment laws. The employer will find that any personnel action, however appropriate and necessary, should be examined carefully to be certain that action is not retaliation for blowing the whistle.
Despite such protections, whistle-blowers run great risks. Although technically protected by the law, they may be branded by the employer as a troublemaker, be ostracized by fellow employees, and find it difficult to obtain another job.
PROVING RETALIATION
How can a library employee prove that termination was an act of retaliation by the employer? There are three basic step involves proving retaliation for wrongful discharge in court. The first step involved in the presentation of evidence that retaliation has occurred. A prima facie case must be raised. For example, Employee A filed a workers' compensation claim and shortly thereafter was fired. The second step gives the employer the opportunity to explain why the personnel action was taken. The employer explains that Employee A was terminated for misconduct, a legitimate reason unrelated to the workers' compensation claim. In the third step, Employee A is then given the opportunity to present evidence that demonstrates that termination was in retaliation for filing a workers' compensation claim-for example, evidence that two other employees who filed claims were fired, that all performance evaluations were positive, and that the employer used the pretext of misconduct for retaliation. The court then hears evidence from both parties relating to the action.
Implied Contract
The employment-at-will rule may be found invalid in situations governed by an implied contract. An implied contract is an inferred understanding of the conditions of continued employment. The employer's assurances, either written or oral, of continued employment could void the at-will arrangement and require the employer to show just cause in a discharge. Specific statements by a supervisor such as "You will have a job here as long as you continue to do good work" have been found by courts to constitute an implied contract. Kelly v. Georgia-Pacific Corp(1989)5 provides a definition that is useful: "The court can consider the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate... circumstances that may alter "at-will' employment."
Fired in Violation of Good Faith
Employers cannot terminate an at-will employee without cause after a long period of employment. Of course, much depends on the nature of this long-term employment, but courts have found in favor of those employees because there has evolved an obligation on the part of the employer to deal with the employee fairly and in good faith. In one case, a California court awarded $1.7 million to an individual who was fired after 17 years with the company, saying that after such a long time,