Employment Law for the Solo and Small Firm Lawyer
| Publication year | 2021 |
| Pages | 0335 |
By John D. Saxon
Alabama is an at-will employment state. An employer can terminate an employee for any reason, for no reason, or for a bad reason. The employer doesn't have to have a reason, and he doesn't have to give a reason.1
So, if a terminated employee comes to your office, at-will mployment ends the discussion, right? Wrong. An employer can terminate an employee (or refuse to hire, demote, or pass over for promotion) for any reason as long as it is not an illegal reason.
This article provides an introduction to the many causes of action which exist under federal and state law to assist you in representing employees mistreated in the workplace.
Exceptions To At-Will Employment
There are some exceptions to at-will employment. Some employees (senior corporate executives, on-air television personalities, head football coaches) have written contracts. Obviously, their employment is governed by the language of their contracts.
If an employee is a member of a union, the terms and conditions of employment are determined by a written collective bargaining agreement.
In the education arena, a non-probationary (tenured) employee has a property interest in her job and cannot be summarily dismissed without a hearing and without specified reasons.
If an employer has an employee handbook, progressive discipline scheme, or a set of written regulations which govern terms and conditions of employment, there may be language which would protect an employee against dismissal.2 In order to create a contract, the language in the handbook must be sufficiently clear and specific so as to constitute an actual offer rather than a mere statement of policy.
In the case of Ex parte Graham, the Alabama Supreme Court determined that provisions of a former employer's personnel manual were sufficiently clear and specific to constitute an offer of a unilateral contract of employment.3 The handbook not only did not contain the appropriate disclaimer language, it contained language that precluded discipline except for cause, and it set forth a grievance procedure that had to be followed prior to an employee's termination.
If the employer did not live up to certain terms of employment or promises and commitments, the employee might have a cause of action for breach of contract, especially if the prospective employee gave up an existing job to take a new job.4
Finally, if the employer made representations of fact in the recruitment and negotiations which induced a prospective employee to accept employment, but then did not live up to those promises and commitments, the employee may have a cause of action for fraud.5
Federal Employment Discrimination Laws
The principal federal statute providing protection from workplace discrimination is Title VII of the Civil Rights Act of 1964.6 It prohibits discrimination based on race, color, religion, sex or gender (including pregnancy), or national origin. The Supreme Court has subsequently construed sex or gender to prohibit sexual harassment, both opposite sex, and same sex, harassment, and to prevent discrimination based on sexual orientation and transgender status.
Section 1981 of the Civil Rights Act of 1866 was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It gives all U.S. citizens the same right to "make and enforce contracts".7
Three years after enacting Title VII, Congress added age to the protected categories of Title VII with the Age Discrimination in Employment Act of 1967 ("ADEA"), protecting employees 40 years of age and older from adverse workplace actions.8
In 1990, Congress added another protected category-disability-by enacting the Americans with Disabilities Act of 1990 ("ADA"). It prevents discrimination against an employee who is a qualified individual with a disability who can, with or without accommodation, perform the essential functions of his job.9
The Rehabilitation Act of 1973 (Rehab Act) prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.10
The standards for determining employment discrimination under the Rehab Act are the same as those used in Title I of the ADA: It protects "qualified individuals with disabilities." An "individual with a disability" is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. "Qualified" means the person satisfies the job-related requirements of the position the person holds (or is applying for) and can perform its essential functions with or without a reasonable accommodation.
The Family and Medical Leave Act ("FMLA") was signed into law in 1993.11 It provides up to 12 weeks of leave for either the birth of a child (for both mother and father) or for a serious health condition of the employee or an immediate family member. The employer cannot interfere with the employee's...
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