F. Statutory Considerations

Consider whether statutory or public policy considerations prohibit a firing. A variety of federal and state statutes restrict an employer's freedom to discharge employees and protect workers from being fired, even in an at-will firing state; many of these laws probably apply in your state. For example, dismissals are illegal when they are based on age, sex, race, national origin or religion, union membership or participation in union or political activity, group activity to protest unsafe work conditions, refusal to commit an unlawful act on the employer's behalf (e.g., commit perjury or fix prices), reporting alleged violations of the law (whistleblowing), performing a public obligation, or being sued for nonpayment of a debt or <$IWage garnishment>wage garnishment.

The most comprehensive and significant federal legislation is Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1990. Under these laws, employers cannot fire workers based upon personal characteristics of sex, age, race, color, religion, national origin, and non-disqualifying physical or mental impairments unrelated to job qualifications. The previous chapter explored these subjects. The law also protects from reprisals workers who exercise their First Amendment and other rights, including refusals to take a lie detector test or speaking out about health and safety conditions. A discussion of other factors that may enter into the legality of a firing follows.

Credit Problems

The Consumer Credit Protection Act of 1973 forbids employers from firing workers whose earnings have been subjected to a wage garnishment arising from a single debt. However, employees may presumably be fired after being hit with other garnishments. Some states have enacted laws which give workers additional protection; check the applicable law in your state.

Severance And Retirement Benefits

The Employee Retirement Income Security Act of 1974 (ERISA) prohibits the discharge of any employee who is prevented thereby from attaining immediate vested pension rights, or who was exercising rights under ERISA and was fired as a result. ERISA also entitles employees to certain rights as participants in an employer's pension and/or profit-sharing plans. ERISA provides that plan participants are entitled to examine without charge all plan docu- ments, including insurance contracts, annual reports, plan descriptions and copies of documents filed by the plan with the U. S. Department of Labor. If a worker requests materials from a plan (including summaries of each plan's annual financial report) and does not receive them within 30 days, he/she may file a suit in federal court. In such a case, the court may require the plan administrator to provide the materials and pay the worker up to $100 a day until he/she receives them (unless the materials were not sent for reasons beyond the administrator's control).

Asserting Union Rights

The National Labor Relations Act prohibits the>firing of any employee because of his or her involvement in union activity, because of filing charges, or because of testifying pursuant to the act. Workers who believe they have been fired for similar reasons typically file charges with a regional office of the National Labor Relations Board.

The law also protects employees who band together to protest about wages, hours or other working conditions. For example, if a group of non-union employees complain about contaminated drinking water, or about failure to receive minimum wages or overtime pay, their employer could be prohibited from firing them if their charges are proven.

Attending Jury Duty

The Jury System Improvements Act of 1978 forbids employers from firing employees who are empaneled to serve on federal grand juries or petit juries. Most states have enacted similar laws and any person who is summoned to serve as a juror and notifies the company prior to serving, may not be discharged or penalized. While an employer may withhold wages during the period of service, the job must be held open for the employee's return and any retaliation taken against the employee is often considered criminal contempt of court. The same protection also applies to employees who are victims of crimes, or who are subpoenaed as witnesses in criminal proceedings.

Reporting Railroad Accidents

Two federal laws govern here. The Federal Railroad Safety Act prohibits companies from firing workers who file complaints or testify about railroad accidents; the Federal Employees Liability Act makes it a crime to fire an employee who furnishes facts regarding a railroad accident.

Engaging In Legal Activities Off-Premises And After Working Hours

It may also be illegal to discharge a worker who participates in legally permissible political activities, recreational activities, or the legal use of consumable products before or after working hours. Political acti- vities include running for public office, campaigning for a candidate or participating in fund-raising activities for a candidate or political party. Those activities may be protected if they are legal and occur on the employee's own time, off company premises and without the use of employer property or equipment.

Recreational activities are defined as any lawful leisure-time activities for which the employee receives no compensation and which are generally engaged in for recreational purposes. The definition of con- sumable products even protects the rights of people who smoke or drink alcohol before and after working hours and off the company's premises.

The right not to be fired for exercising these legally-permitted activities generally depends on applicable state law; to date, 28 states have passed some form of legislation in this area and the trend is for more states to follow. In New York, for example, employers cannot discriminate in hiring, promotion and other terms of employment due to off-duty activities in four specific categories: political activities, use of a "consumable product," recreational activities and union member- ship or exercise of any rights granted under federal or state labor law. Employers who violate the law are subject to a lawsuit by the State Attorney General seeking to restrain or enjoin the continuance of the alleged unlawful conduct. Penalties are provided ranging from $300 for initial wrongdoing to $500 fines for subsequent acts. Additionally, aggrieved individuals may commence their own lawsuits and recover monetary damages and other forms of relief.

Most state laws do not protect workers who moonlight, violate their employers' conflict-of-interest policies or engage in non-work activities proscribed in collective bargaining agreements. Additionally, most state laws only cover the rights of people who smoke off- premises, making it a violation of law for employers to refuse to hire (and sometimes fire them.)

reason, such as higher costs. However, people who smoke off-duty must still comply with existing laws and ordinances prohibiting smoking on premises, such as only in designated areas.

Counsel Comment #128: All employers should review company policies pertaining to substance abuse and think twice before taking adverse action against workers who extensively drink alcohol off-premises. Review existing insurance policies and coverage for gaps. Minimize the regulation of employees' conduct outside of the workplace, such as those who engage in dangerous activities off-hours including smoking, sky-diving, bunji-jumping, scuba-diving, or even employees who over-eat.

Be wary of making, adopting, or enforcing any rule which prevents employees from participating in political activities, affiliations or political action. This means threatening to fire workers who organize to protest better working conditions. Since some states do not have specific laws protecting employees from engaging in political activity, and the laws vary so, always consult with counsel and review applicable state law before taking action in this area.