SC Lawyer, January 2006, #3. Red Flags for Non-Employment Lawyers.

• Author: By J. Hagood Tighe

South Carolina Lawyer

2006.

SC Lawyer, January 2006, #3.

Red Flags for Non-Employment Lawyers

South Carolina LawyerJanuary 2006Red Flags for Non-Employment LawyersBy J. Hagood TigheIf an attorney has clients with employees, he will be asked for opinions about how to handle employment issues. Like all areas of the law, the cases and statutes governing the employment relationship continue to develop and change.

Employment lawyers receive regular calls from clients (and sometimes non-employment lawyer friends) seeking to confirm that the law is as they believe it to be. Often, these theories are based on common employment-related misconceptions. Outlined below are some common misconceptions of employment law, along with some basic red flags. Under each is a summary of legal issues that impact these incorrect statements.

"I can fire that employee for any reason because he is at-will!"

While South Carolina is an at-will state, this does not mean that an employee can be fired for "any reason." The doctrine in its pure form allows an employer to discharge an employee for good reason, no reason or bad reason without incurring liability. Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 220, 337 S.E.2d 213, 214 (1985) (citing H.G. Wood, Master and Servant (1877)). "Within the past 25 years there has been a significant turning away from strict allegiance to the doctrine in courts throughout the United States." Id. at 222, 337 S.E.2d @ 214 (citations omitted). The courts and legislature have created many exceptions to the at-will doctrine. South Carolina has embraced this trend.

Statutory Exceptions: Termination on the basis of race, sex, national origin and many other now-protected categories was permissible under the at-will doctrine until Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Congress has sought to limit other "bad reasons" for termination by enacting laws such as the Americans With Disabilities Act, § 42 U.S.C. 12101 (1990), The Equal Pay Act, 29 U.S.C. § 206(d), the Family and Medical Leave Act, 29 U.S.C. § 2601, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(K), the Labor Management Relations Action, 29 U.S.C. § 141, and many others.

The South Carolina legislature has implemented its own modifications to the at-will doctrine. For example, it has passed laws prohibiting discrimination against those who object to working on Sunday. S.C. Code Ann. § 53-1-5 (Law. Co-op. Supp. 2004). Other limitations of the at-will doctrine include the prohibitions against firing employees who comply with a subpoena or serve on a jury, S.C. Code Ann. § 41-1-70 (Law. Co-op. Supp. 2004), firing or retaliating against those who file workers' compensation claims, S.C. Code Ann. § 41-1-80 (Law. Co-op. Supp. 2004), terminating employees based on the use of tobacco outside the workplace, S.C. Code Ann. § 41-1-85 (Law. Co-op. Supp. 2004), making it unlawful to require union membership as a condition of employment, S.C. Code Ann. § 41-7-30 (Law. Co-op. Supp. 2004), and many others.

Common Law Exceptions: Court decisions have also impacted the at-will doctrine. South Carolina, like most states, has a "public policy" exception to the at-will doctrine. The "public policy" exception typically holds that, while an employer may generally fire an employee for any reason, it may not fire an employee in a manner that violates the public policy exception to the doctrine of employment at-will. Ludwick v. This Minute of Carolina Inc., 287 S.C. 219, 337 S.E.2d 213 (1985). The courts have also held that an at-will employee may not be terminated for exercising constitutional rights. Moshtaghi v. The Citadel, 443 S.E.2d 915 (S.C. Ct. App. 1994). Finally, as discussed in more detail below, South Carolina courts have also determined that employers can create implied contracts with employees based on handbooks, manuals and oral statements.

"I do not have to worry about discrimination because I have fewer than 15 employees."

Typically, employees sue for discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Title VII only applies to employers with at least 15 employees and there are limits on the potential damages. However, there is at least one way that employers with fewer than 15 employees can be sued for discrimination. Under the Civil Rights Act of 1866, 42 U.S.C. § 1981, an employee can sue for certain types of discrimination, regardless of the employer's size. There are advantages to an employee bringing a discrimination claim under § 1981, rather than suing under Title VII of the Civil Rights Act. These include more liberal statutes of limitations and the absence of caps on damages.

"Disclaimers prevent handbooks from becoming implied contracts."

In South Carolina, it is very easy for handbooks, policies and even statements by supervisors to become implied contracts. While many believe that a disclaimer stating that the handbook is "not a contract" will prevent it from becoming an implied contract, this is no longer the case in South Carolina. In several recent decisions, South Carolina's courts have affirmed that handbooks can serve as the basis for an implied contract. See...