SUMMARY

Employment rights arise from a mixture of state and Federal rules. Most Federal employment rules arise out of equal protection and discrimination promises, while most employment rules of the State of Michigan are a combination of Republican-inspired “at will” employment, and hold-over 1960 and 1970s-era legislative protections of employees from particular wrongful acts. The “at will” rules mean that absent a specific promise to the contrary, any employer can fire any employee at any time for any reason (barring proof a discrimination on an illegal basis).

Employees have the right to demand a copy of their personnel file. As noted, they also have the right to be free from illegal discrimination, sexual harassment or retaliation. Many of the latter rights have been significantly compressed and Michigan courts have also allowed employers a standing “excuse” based upon “legitimate business purpose”.

________________________________

EMPLOYMENT RIGHTS


Employments rights are a complicated combination of Federal statutes, state statutes and privately-created contract rights. When someone is terminated, mistreated or injured at work, each case must be evaluated on its particular merits.

Workers compensation systems

First, with regard to work injuries, there are two potential systems of compensation. If the injury arises in the course of employment, the worker should have alternative rights under the workers’ compensation system. This is a state system created in the early twentieth century in most states to offer minimal protections to injured employees. It is based on substantial compromises. In essence, employers had enjoyed the right to avoid paying compensation to an injured employee if he or she was comparatively negligent, or assumed the risk of injury, or suffered injury as a result of the mistake of a co-worker. Together this “unholy trio” of defenses precluded compensation to most employees. In return for eliminating these defenses and paying all injured workers, regardless of fault, the employees’ right to sue the employer for negligence were sacrificed and the actual benefits paid were reduced to a marginal level of economic loss. In essence, all workers who suffer injury arising out of employment receive minimal compensation, but even the most deserving do not receive full compensation. Recent “reforms” have further reduced the compensation paid by giving the employer credit for other family income, other governmental benefits, and retirement interests.

If an employer purchases workers comp insurance, employees have no other legal alternatives against the employer or co-workers if there is an injury at work. If the employer has not purchased comp insurance, the worker has the option of pursuing comp or negligence remedies–but often this is a hollow right if the employer is under-capitalized and under-insured.

Work injuries involving people who aren’t co-workers

If the injuries are suffered at work as the result of an independent actor’s negligence, the employee retains the right to pursue a claim against the at-fault individual. In many cases, the only impact of workers compensation in this situation is a lien created by law that requires any settlement proceeds be used first to re-pay the comp insurer. In these cases, the comp insurer frequently becomes a “silent partner” in any injury litigation or settlement; some insurers work well and fairly with the employee and his or her attorney; others can be a very frustrating stumbling block. They are obligated to pay their share of attorneys fees and costs in the event of recovery.

Pursuant to tort “reform” changes, the at-fault in an injury case can defend by arguing that the employer was at fault. (This is frequently the case where machine guards have been removed, for example, or a common work area has not been properly protected.) Even though the employer cannot be sued because it has comp immunity, the jury is allowed to assign it a percentage of fault which the employee cannot recover. Another “reform” extended the employer’s comp immunity to include even intentionally and willfully dangerous behavior, provided the employer did not actually intend to injure the employee.

“At will” Employment

When the Republicans took control of the Michigan Legislature and Courts in the 80s, one of their first “reforms” was to try to eliminate an employee’s proprietary interest in his job. Prior to that time, Michigan employees were allowed to claim a right of continued employment if the employer had used an implied promised of continued employment to induce better employee performance. Michigan was converted to an “at-will” employment state where no matter how long his term of employment, an employee could be discharged “at will” absent an explicit contractual promise to the contrary. It has been our experience that since this change in the law, most corporate employers have taken thorough steps to insulate themselves from any promise of continued employment. Still, a minority of firms do make express promises of employment either in employee contracts, employment hand books or employment discipline policies. When someone is unfairly discharged, these documents must be examined closely for their impact on employment rights.

Discrimination and public policy

Even when employment is “at will”, the employer cannot punish or discharge an employee contrary to law. There are a handful of laws that establish a federal or state public policy protecting certain employees under varying circumstances. For example, employees cannot be discriminated against on the basis of age, race, gender or ethnic origin. If a person is “handicapped” or “disabled” but still able to perform a job with reasonable accommodation, the employer cannot discriminate against her or him. Unfortunately, in the past decade “reform” decisions have significantly reduced the employees who can claim such protection by tweaking the definitions of various terms. For example, under Michigan’s Handicap Civil Rights Act, the hospital’s duty to accommodate an R.N. does NOT include a duty to transfer her to an administrative job with fewer physical requirements, even if such a job is readily available. Similarly, the U.S. Supreme Court recently held that if a “disability” is controlled by medication, the employee is not “disabled” pursuant to the American with Disabilities Act, and therefore the employee cannot claim its protections: the employer is free to discriminate against the employee on the basis of his illness or condition.

There are other public policy bases for employee protection in addition to discrimination based on physical characteristics. They include Whistleblower statutes, protecting persons who report illegal activity; actions to remedy retaliation for filing a workers compensation claim, and all forms of sexual harassment, among others. MANY OF THESE EMPLOYMENT CLAIMS REQUIRE THAT THE EMPLOYEE TAKE ACTION WITHIN A VERY SHORT TIME PERIOD–SOMETIMES AS SHORT AS SIXTY DAYS, EVEN, IN ORDER TO PRESERVE THE EMPLOYEE’S RIGHTS.

Under these statutes, employees usually enjoy the right a workplace free of mistreatment, financial penalty or unfair employment terms. On the other hand, under recent decisions, if the employer responds appropriately to a co-worker’s or supervisor’s improper conduct, it may be protected from liability. Further, most such employment litigation rights are curtailed if the employer extends a bona fide offer of re-employment to the victimized employee.

Discharge or “Constructive Discharge”

Most employment rights statutes prohibit any unfair employment action, practice or discrimination, including failing to hire, failure to promote, subjection of the employee to a hostile workplace environment, and of course wrongful discharge. The law has held that an employee who is subjected to an intolerable work environment is “constructively” discharged, even if it is the employee who finally terminates the employment relationship.

Legitimate business purpose and other employer defenses

Recent “reform” decisions have greatly expanded the defenses available to allegedly discriminatory employers. One of the most difficult to address is the near-total defensive claim that an illegal discharge was actually the result of some other legitimate business decision and necessitated by a legal, rather than illegal purpose, such as market-driven “down-sizing”. It can be very difficult to address this form of defense if the employer’s management has made a cynical attempt to cosmetically cloak its actions with legal justification.

Other reform policy decisions have eliminated or greatly restricted the use of statistical analysis in discrimination claims based upon membership in a protected class. Even if statistical analysis demonstrates an apparently clear purpose to exclude or mistreat a particular class of employees, it is often necessary to find independent, corroborating evidence to tie a particular employment action to this employment history.

Finally, the courts have recently begun to allow employers to justify illegal actions by resort to defenses “they would have had, if they had but known”. As a result, many employers now flyspeck an employee’s history, files, and behavior in an attempt to sully the employee sufficiently to claim that its own illegal behavior would have been justified, had it only know the “truth” about the victimized employee. Thankfully, most courts are reluctant to place their imprimatur upon this form of after-the-fact muckraking.

Employment Records

Pursuant to an act of Congress, almost all employees have the right to demand and receive a full copy of their employment file. When an inappropriate act is believed to have occurred, such a written demand should take place immediately, in order to reduce the employer’s opportunity to “stuff” the file with back-dated or otherwise fictionalized justifications.

Governmental Agencies

It should be noted that some employment abuses can be addressed, without litigation, through resort to labor-related governmental agencies. Where these rights and remedies exist, they may well allow an inexpensive method of addressing inappropriate actions such as abuse of wage and hour provisions, for example. Before filing a complaint with a governmental agency, it is almost always a good idea to discuss the employee’s rights and alternatives with an attorney who is thoroughly versed in this area of law.