Avoiding Wrongful Employee Terminations

This article discusses wrongful termination at the workplace and provides strategies to avoid them. It covers topics such as constructive discharge, burden of proof, at-will employment doctrine, and the Montana Wrongful Discharge from Employment Act. By following precautions and legal rules, organizations can ensure that employee terminations are done legally and professionally.

Assignment 4
Avoiding Wrongful Employee Terminations

In the United States, wrongful termination means to be discharged from the duty by
the employer with no specific or legal reasoning ("Wrongful Termination - FindLaw", 2019).
The wrongful termination of employees from their job might constitute a breach of the
federal anti-discrimination laws, as per the EEOC. The Equal Employment Opportunity
Commission is commissioned by the United States federal government to take care of the
discrimination at the workplace based on caste, creed color, race, gender or disability and to
implement the anti-discrimination laws. Further, it is also unlawful to terminate employment
as a retaliation for a legal complaint filed by an employee regarding a discrimination faced at
the workplace, or because the employee decided to whistle blow a wrong practice being
conducted at the organization. (Tomlinson & Bockanic, 2009) The paper intends to explore
the wrongful termination at workplace and the ways to avoid them.
Constructive discharge is a reformed way of implementing the wrongful termination
of an employee. (Sanchez, 2015) The constructive dismissal is done when instead of
terminating the employment of an employee, the employer creates such a hostile environment
for the employee that he or she has no other rational option left for the employee and he or
she has to voluntarily leave the organization. ("Constructive Dismissal and Wrongful
Termination - FindLaw", 2019) In doing so, the employer might have breached the
employment laws or policies by cornering the employee at the workplace.
The burden of proving that constructive dismissal existed, lies with the employee in
the court. ("Constructive Discharge: Everything You Need to Know", 2019) The factors that
courts might emphasis upon to decide whether there is a presence of a claim of constructive
discharge exists are as follows:
 If the employee was coerced or required to execute an unlawful practice.
 The period that has passed between the purportedly unlawful conduct and the
employee's successive resign.

 If there existed reasonable recognition or inquiry done by the employer of the
complaint made by the employee.
 The nature of the illegal behavior displayed by the employer.
An organization can avoid claims of constructive discharge by keeping their work
environment free of intimidation, nuisance and aggression and ensuring that there exists
respect for everyone. The management can also make sure that the changes which can
influence employees are noted to them in writing and they sign the modifications done for
documentation purpose. Further, whatever changes are done are made fairly and keeping the
interest of the business in considerations, after discussing the same with the employees who
are being impacted by it. Additionally, employers should ensure that if an employee is given
another position, they should be in comparison to the duties and total pay of the previous
position. (Hesse, 2016)
At-will employment refers to the practice of an employee quitting a job at their will
for any reason, and the freedom of an employer to fire any employee for any reason
whatsoever, without recurring any legal liability. The at-will doctrine provides the employer
the liberty to alter the employment terms and conditions without providing for any notice or
reason.
In my opinion, employment-at-will is a very unfair employment practice and can
bring a great amount of biasedness in the workplace leaving the employee vulnerable. An
employer can execute this doctrine just because he or she might not like a certain employee.
Further, an employee can also leave the organization, just because he or she got a better deal
somewhere, without giving any due course of serving period or completing a project in hand,
leaving the employer helpless as no legal course of action could be taken against the same.
Even though there is a prevalence of at-will doctrine at the workplace in the United States,

there are certain exceptions to it. (Handrick, 2018) There exist four major exceptions that
challenge the at-will employment practice. These are as follows:
Public Policy – Numerous civil rights laws and policies, like anti-discrimination laws
and others, exists and are deemed to shield employees from the discrimination meted out to
them at the workplace. The presence of the above mentioned laws makes the employment at
will doctrine as invalid.
Covenant of Good Faith – The exception refers to the practice of fair and
straightforward relationship between the employer and employee and employers must present
just cause while firing someone.
Written or Implied Employment Contracts challenge the will of employers to fire an
employee without just causes. (Gely,Cheramie, Chandler, 2016)
Trade Unions & Collective Bargaining Units – being members of trade union provide the
protection to employee’s from the employer’s at will termination. The trade union
agreements mention the terms against which an employee can be fired, the notice period
served and the compensation for the same, negating any at-will employment clause.
The employment-at-will doctrine is followed all over the United States except
Montana. Wrongful Discharge from Employment Act (WDEA) has been formulated by the
State of Montana in 1987, which has lawfully altered the employment at-will doctrine.
Though the act has retained the employment at-will doctrine, but states the legal basis against
which termination will be termed as wrongful discharge.
The Montana Wrongful Discharge from Employment Act presents a host of benefits
to both employees as well employers. Voluntarily quitting from the workplace would imply
that the employee will not get any unemployment compensation. By putting forth a list of
legal clause for wrongful discharge of employment, the law protects the interest of
employees. As per the Act, a termination is wrongful if it is done in retaliation to an

employee’s refusal to breach any the reporting of the violation of a public policy or for
reporting a violation of public policy. ("Wrongful Discharge from Employment Act (WDEA)
Law and Legal Definition | USLegal, Inc.", 2019) A termination will also be termed wrong if
there is an absence of a good cause and after the completion of the probationary period of
employment. Further, there is a wrongful discharge if the employer violates his own formal
employment policy or any of the provisions expressed in it. From the employer’s perspective,
the Act defines good cause and provides justifiable basis associated with the job for
terminating employment. The Act gives the employer the chance to discharge an employee if
he or she is not performing their job satisfactorily or disrupts the employer’s operation. Thus,
the employer does not have to tolerate the bad behavior of the employees in the office, as the
Act gives the freedom to the employer to fire the employee on reasonable grounds.
("Kalispell Attorney providing employment law representation.", 2019)
An organization can ensure that the termination of employees are done legally
by following some precautions at the workplace:
 The employer can ensure that the environment of the workplace is conducive to
harmony and peace. Further, any major change which can impact the employees
should be made in consultation with them, and any suggestion given should be
incorporated. The decision to fire an employee should not be based on their
religion, race or ethnicity. Further, an employer should ensure that there exist
‘just causes’ for the termination of any employee.
 If an employee is under a contract, the terms of the contract should be fulfilled
while terminating the employment and the notification conditions be complied
with. In organizations, where trade union exists, the employer should go as per
the trade agreement while deciding the termination of any employee.

 Last but not the least, while intimidating the employee of the termination, care
should be taken to employ legal rules and business etiquettes to convey the
decision. This will ensure the process carried out is a professional one and no
personal bias is at play.

References
Constructive Discharge: Everything You Need to Know. (2019). Retrieved from
https://www.upcounsel.com/constructive-discharge
Constructive Dismissal and Wrongful Termination - FindLaw. (2019). Retrieved from
https://employment.findlaw.com/losing-a-job/constructive-dismissal-and-wrongful-
termination.html
Gely, R; Cheramie, R; Chandler, T. Employee Responsibilities & Rights Journal. Mar 2016,
Vol. 28 Issue 1, pp. 63-78
Handrick, L. (2018). At Will Employment Doctrine: How It Works & 4 Big Exceptions.
Retrieved from https://fitsmallbusiness.com/at-will-employment-doctrine/
Hesse, A. (2016). How to Prevent Constructive Dismissal Claims. Retrieved from
https://clearhrconsulting.com/blog/hr-smalltalk/how-to-prevent-constructive-dismissal-
claims/
Kalispell Attorney providing employment law representation. (2019). Retrieved from
https://kortumlawoffice.com/areas-of-practice/employment-law-attorney/
Sanchez, J. American Journal of Trial Advocacy. 2015, Vol. 39 Issue 1, p65-106. 42p
Tomlinson, E; Bockanic, W. Employee Responsibilities & Rights Journal. Jun 2009, Vol. 21
Issue 2, p77-87
Wrongful Discharge From Employment Act (WDEA) Law and Legal Definition | USLegal,
Inc. (2019). Retrieved from https://definitions.uslegal.com/w/wrongful-discharge-
from-employment-act-wdea/
Wrongful Termination - FindLaw. (2019). Retrieved from
https://employment.findlaw.com/losing-a-job/wrongful-termination.html