Beginning in the 1960s, some state legislatures began scrutinizing the fairness of the employment-at-will doctrine. Under this traditional rule of law, employers hired workers at will and were free to fire them at any time, with or without cause and with or without notice. From the nineteenth to mid-twentieth century, employers could discharge individuals with impunity. But beginning in the 1960s, courts began handing down rulings to safeguard the rights of non-unionized employees, and Congress passed specific laws pertaining to occupa- tional health and safety, civil rights and freedom to complain about unsafe working conditions.

Thirty years later, there has been a gradual erosion of the employment-at-will doctrine in many areas. For example, some states have enacted public policy exceptions which make it illegal to fire workers who wish to perform jury duty or military service. Some courts have ruled that statements in company manuals, handbooks and employment publications constitute implied contracts which employers are bound to follow. Other states now recognize the obligation of companies to deal in fairness and good faith with longtime workers. This means, for example, that they are prohibited from terminating workers in retaliation when an employee tattles on abuses of authority (i.e., whistleblowing), or denying individuals an economic benefit (e.g., a pension that is vested or about to vest, commission, bonus, etc.) that has been earned or is about to become due.

Most employers are unaware that in the past thirty years, the amount of employment-related litigation has increased more than 2000 percent. The average jury verdict in wrongful discharge cases now exceeds $500,000, and the amount of litigation stemming from discrimination charges has skyrocketed, due in part to the more liberal amendment to Title VII in the form of the Civil Rights Act of 1991 and the recently enacted Americans With Disabilities Act. From pre-hiring considerations to on-the-job rights of privacy, freedom from lie detector tests, and enhanced rights upon discharge, new rulings are emerging every day that give employees greater rights.

Federal and state laws are continually being passed that grant employees access to their personnel records, prohibit companies from firing female employees on maternity leave, make it more difficult to fire workers who are performing inadequately, permit union employees to be represented by union delegates when accused of disciplinary violations, and protect employees in many other ways.

In the past, employers could fire workers with or without cause or notice, with little fear of legal reprisal. This has changed. More and more terminated workers are successfully arguing and proving that company promises made at the time of the hiring interview are binding on the employer. Years ago, terminated employees would merely bow their heads and shuffle out the door after hearing they had been fired. Now, terminated workers are questioning these decisions and negotiating better severance packages and other post-termination benefits. In fact, the guiding maxim I offer to personnel executives, recruiters and owners of businesses is, "No good deed out of kindness goes unpunished." If you think about this apparent contradiction for a moment, you will begin to understand the problems employers currently face.

No company, regardless of its size or industry, is immune from this growing trend. The evolution of new laws, and the philosophy that a job is an integral part of a person's life and not just a vehicle for earning a living, is creating problems for employers and giving workers ammunition with which to fight back.

Statistics indicate that 3.8 of every 100 employees are fired or resign from their jobs each month. Experts suggest that more than 350,000 workers are terminated unjustly and illegally each year, exposing their employers to hundreds of millions of dollars in potential damages, not including lost manpower costs and bad publicity, and tens of millions of dollars in unnecessary legal fees and expenses.

From Hiring To Firing: The Legal Survival Guide For Employersevolved from the variety of services I perform as labor counsel. In the mid-1980s, I was invited to address printing industry employers at a dinner in New York City. My topic was how to hire and fire employees properly in view of recent, drastic changes in the law. After the dinner meeting, I. Gregg Van Wert, then Executive Vice President of the National Association of Printers and Lithographers (and now President), inquired if I would create a special full-day seminar for NAPL employers to cover the wide spectrum of legal issues and problems currently faced by printing companies. Following the seminar, NAPL commissioned me to write a manual, complete with checklists and forms, for its 3,700 printing company members entitled Employment Law: A Printer's Handbook On Hiring And Firing. The manual was written to give company executives charged with interviewing, hiring, disciplining and firing employees, an overview of and assistance in understanding the multitude of court rulings, regulations, and laws which protect workers.

Based on the manual's positive impact in the printing industry, I decided to write a major, comprehensive book for employers in all industries throughout the country which would combine up-to-the minute changes in the law with the expertise gained in my professional experience as a practicing labor lawyer representing thousands of employees and employers.

My career was stimulated, in part, from an interview about my work which appeared in The Wall Street Journal in the fall of 1984. Many actual cases cited in this book are derived from the numerous terminated executives and workers who hired me after reading the article and my subsequent book, The Employee Rights Handbook: Answers To Legal Questions From Interview To Pink Slip. Thus, you will note I have used real cases in a conscious attempt to make this book as comprehensive and practical as possible.

A few examples illustrate the potential cost to employers who fail to understand the issues. In one case, I obtained a quick cash settlement of $37,500 for a man who was fired after being falsely accused of drinking too much at lunch. Another executive with nine-plus years of accumulated work time was fired suddenly, late one November day. During negotiations, I argued that the firing was unjustified and deprived him of a large year-end bonus he was anticipating and a pension due to vest at the beginning of his tenth year of service. The company eventually paid my client a bonus of $50,000 plus severance pay totaling $75,000 (representing one month's salary for each year of service) and agreed to keep him on unpaid leave for the duration of the year so he would qualify for his vested pension.

Based on actual true case experiences, the text was written to reveal the hidden traps for well-intentioned employers who do not understand the scope and force of employees' rights. In addition, the book provides ammunition on how to fight back.

In this litigious age, it is crucial that employers take a preventive approach. By implementing the suggestions contained in this book, you can significantly reduce the chances that your company will be successfully sued by a former or current employee. Many of the self-protective steps outlined herein can enable your business to avoid ongoing disruption due to claims of sexual harassment, discrimination, invasions of privacy, breach of contract and unfair firings.

Regardless of the number of workers your company employs, its location or industry, From Hiring To Firing offers hundreds of preventive strategies your company can take to avoid such problems. The book covers pre-hiring and post-hiring considerations as well as the traditional problems associated with the hiring and firing stages essential to minimizing litigation. In fact, most lawsuits that arise after a firing could have been avoided by proper planning long before the hiring stage. With this book as your guide, you will be able to implement new policies within your company, if none already exist, and alter current policies where warranted. Obviously, while this book suggests what company policy should be, it is not a per se statement of a particular policy. Rather, it provides various strategies which can be modified and implemented as required.

This book can reduce the odds of your company being sued unfairly and advises you and your lawyer how to minimize claims if you are sued. By reading this book, you may be in a better position to tell if an individual is able to assert such theories and reduce your company's exposure to such claims.

Since non-union employees have greater options than union members in many instances, and since these options are what make the new legal developments so dangerous to non-union companies, this book deals primarily with topical problems of non-union employees. The information contained herein can help you hold back the tide in this potentially dangerous area.

From Hiring To Firing contains all the practical information my clients receive, but at a fraction of the cost. Thus, keep this book in an accessible place and read the applicable sections before making a decision. Although each case depends on its unique facts, I have tried to reduce complicated court rulings, regulations and labor laws throughout the United States into simple strategies that companies in all states can understand and follow.

You are about to learn that knowledge is power and that employers have significant rights at their disposal. Many of the items discussed in the following pages encompass simple rules of common sense and reason. The body of employment law has been created to further fairness and justice; it is there to protect your company, but it will not help you unless you participate in your own defense and know how to detect improprieties and avoid common labor problems. Thus, know the law and above all, good luck.

--Steven Mitchell Sack, Esq.
New York City, New York