The Good, the Bad, and the Ugly (Reasons) for Termination in Georgia

Pop quiz!  You are an employee for Walmart and as you arrive at work, you see a man leave his dog locked in a car with the windows rolled up.  It’s 90 degrees out and you are worried about the life of the dog.  What do you do to avoid being fired?

(A) Do nothing

(B) Call the police

(C) Find the owner and convince them to do something

(D) Grab a brick and rescue the dog yourself

(E) Tell your manager and go back to work

(See poll at end of blog)

If you live in Georgia (and five other states, including Alabama, Louisiana, Maine, Nebraska, New York, and Rhode Island), this is a trick question.  In these dirty half-dozen states, there is no public policy exception to terminating an employee in an at-will employment arrangement.

Now, most of you reading that sentence just had your eyes glaze over and may have fallen asleep in some law-jargon-induced, narcoleptic seizure. That’s understandable. But luckily, there are people specially trained to decipher such gibberish.

So let break this down : 1) At will employment is an employment law doctrine that defines an employment relationship in which either the employer or employee can immediately terminate the relationship at any time with or without any advance warning.  2) A public policy exception to at will employment allows an employee to recover if they are wrongfully terminated for a reason that typically benefits the public or society at large.  Such public policy exception could include whistleblowing on an employer who knowingly produces a defective product, reporting illegal actions by the employer, or a filing workers’ compensation claim.  In states with public policy exceptions, employees are protected from the retaliatory actions of their employer when the employee engages in conduct that benefits society, even at the expense of the employer.  The reasoning for such exceptions is that employees are naturally discouraged from certain lawful activities if they know that they could be terminated for engaging in those activities.

The quiz at the beginning of this article is based upon a Walmart employee in Ontario, Canada who was fired for taking action when she saw a dangerous (and possibly illegal) activity in the parking lot where she worked.  While Walmart will claim insubordination as the reason for termination (arguing with her boss and declaring she won’t abide by store policy won’t win an employee any favors), a strong case could be made that the employee’s sin was in acting independently of consulting with her manager.  This sort of punitive action will likely discourage other employees at that Walmart from acting when they bear witness to any dangerous or illegal activity on the store premises.  See a dog or baby locked in a car in the summer?  Get the manager if he isn’t busy and get back to work.  See a person being attacked?  It’s none of your business, you have bills to pay.

As mentioned earlier, Georgia does not have a public policy exception for wrongful termination.  Any employee of a private employer can be fired for any good reason, bad reason, or no reason at all.  The employer cannot fire an employee due to race, gender (sometimes), national origin, religion, or disability, but beyond that, there’s not much else that can be done.  You cannot be fired for voting, jury duty, or military service, but that’s pretty much it.

Employers, however, should use their ability to fire employees with relative abandon and impunity sparingly, but not for any real legal reason.  Training good employees can be costly and time consuming.  High turnover will deplete morale.  And having employees afraid to bring management’s attention to activities that open up the company to potential litigation is a recipe for disaster.  Instead, employers should reward employees for their diligence, honesty, and willingness to act.  Management should be receptive to criticism, understanding of grievances, and willing to act when there is a moral imperative to do so.

Robert S. Bexley, Attorney
Bexley Law Firm, LLC
http://www.bexleylawfirm.com

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Right to Life vs. Right to Work: The Walmart Method

I never intended this blog to become an anti-Walmart screed.  However, as noted in my last blog post (How to Ensure Bad Customer Service:  The Walmart Method), Walmart has long since become the one-stop-shopping source for what NOT to do when running a successful small business.

First, I need to address a straw-man: How can I possibly levy a charge against Walmart, the largest retailer on the planet, for being unsuccessful? The answer is complicated. Simply put, the Walmart of today has little in common with the Walmart of the past. In 1962, Sam Walton founded the Walmart Discount City store in Rogers, Arkansas. Walton created his discount store based on the model of low cost-high volume. He intended his stores to be for working class people. These principals are still followed today by the retail giant. However, the success of Walton’s first stores was also modeled on excellent customer service, happy workers, and fair business practices. If Sam Walton had created his first stores selling cheap products made from Chinese slave labor, with 1 cashier for every 10 customers waiting in line, and employee treatment that would make Bank of America green with envy, his 5 children would be working as managers for Target and K-Mart instead of being 5 of the wealthiest people in human existence.

Rather, the basis for this blog rests in a recent report of the increasingly awful treatment of  pregnant workers, Walmart’s role in discriminating against pregnant employees, and what small business owners can learn from those mistakes.

2Beautiful_Pregnancy_by_Chanclalej

In 2008, Heather Myers was pregnant and worked for Walmart. Following doctor’s orders, Myers kept a water bottle with her while stocking shelves to keep hydrated and to help with a urinary tract infection (a common ailment with pregnant women). Long story short, Myer’s manager gave her an ultimatum: stop drinking from a water bottle or you will be fired.  Myers chose Option C, quit and sue.  She chose correctly because Walmart eventually settled with her out of court.

Walmart settled with its former employee because its lawyers knew that it had a losing case. In 1978, Congress passed the Pregnancy Discrimination Act, a law protecting the employment rights of pregnant women in the workforce by amending Title VII of the Civil Rights Act of 1964 by prohibiting sex discrimination on the basis of pregnancy.  This Act was strengthened in 2008 by adding common ailments associated with being pregnant to the Americans with Disabilities Act, which prohibits discrimination against workers with disabilities (a common misconception is that pregnancy is a listed disability; it is not, but many of the associated health issues with a pregnancy are temporarily disabling, and are therefore protected).

There are two issues at play in how a small business treats its pregnant employees:  what is moral and what is legal.

There is no moral basis for an employer to harass, discriminate, or punish a pregnant employee. If we as a nation want to believe in a “right to life” and the “sanctity of life,” then we cannot then turn around and punish women for becoming pregnant and having the audacity to work in order to provide for their unborn children. In fact, morality demands that we hold employers to a higher standard when it concerns pregnant women who work. Thus, laws have been passed to protect women from undue punishment from the hands of employers who would rather fire a pregnant mother than to briefly accommodate that mother-to-be.

Legally, there is very little defense for not providing reasonable accommodations for a pregnant woman. We as a society have decided, both by law and through social compact, that certain individuals deserve increased protection due to historical discrimination in the workplace. Yet, even 35 years after the Pregnancy Discrimination Act and almost 50 years after the Civil Rights Act, employers are still discriminating against the most vulnerable and the most deserving of protection.

The best way to avoid litigation is to treat your employees with respect, be honest with your customers, treat your competition how you would want to be treated, and to follow the law.

Robert S. Bexley, Attorney
Bexley Law Firm, LLC
http://www.bexleylawfirm.com