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Wrongful Termination

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Voronwë_the_Faithful
Post subject: Wrongful Termination
Posted: Wed 09 Mar , 2005 10:29 pm
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In another thread, in fact, at "some other messageboard" The_Watcher wrote:
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But, even a wrongly fired employee can file a damages suit, the owner needs to show just cause and factual evidence that support the termination.
Sadly, that is simply not true. In California, and I'm almost sure in every other state and perhaps in other jurisdictions as well, employment is presumed to be at-will. This means a private employer can terminate the employee whenever they want, regardless of whether they have good reason, and have no obligation whatsoever to provide factual evidence to support the termination, or even to give any reason at all, or to give any notice. The only exceptions to this are if there is a specific contract that states that the employee can only be terminated with good cause (which almost never exists any more) or if the real reason for the termination can be shown to be discriminatory (e.g., based on the membership in some protected class such as race, gender, age, religion, disability or marital status) or otherwise violates some public policy (e.g., in retaliation for whistleblowing or making a safety complaint, or for refusing to do some illegal act).

This is only true of private employers. Public employers (governmental entities) are held to a higher standard of due process. But if you are employeed by a private company or individual (including a non-profit) and you think that you have a right not to be fired unfairly, in most cases you would be wrong. At least here in the land of the free and the brave, of truth, justice and the American way. :roll: Certainly here in California, and I believe that the other states have similar laws.

As an employment law specialist, this is the largest misconception that I deal with. I would conservatively say that on average I speak to at least one person a day who has his own personal story of how unjustly they were treated, who is sure they have an ironclad suit for wrongful termination, and to whom I have say "yes you were screwed over, but sorry, there isn't a damn thing you can do about it."

Not the funnest part of my job, as you can imagine.


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Axordil
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Posted: Wed 09 Mar , 2005 10:36 pm
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I believe only Montana assumes private employment is anything but at-will. Almost makes me wished I had moved there when I had the chance...

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Voronwë_the_Faithful
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Posted: Wed 09 Mar , 2005 10:47 pm
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Ax, that's very interesting. I'm surprised to learn that. Do you work in the field? Or do you just know everything about everything, as I am beginning to suspect? ;)


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Faramond
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Posted: Wed 09 Mar , 2005 10:57 pm
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So what you're saying, Voronwe, is that even a just accusation of "wrongful termination" has about as much force as a just accusation of "wrongful banning"?


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Jnyusa
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Posted: Wed 09 Mar , 2005 11:01 pm
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Voronwe - you beat me to it! I was going to ask you to comment on that post.

There is a twist in it though ... perhaps this makes no difference ... in that Jon and Ted did not hire any of us. In fact we paid them to use their website ... at least all of those who remained banned did so.

I know that businesses can post things like, "No shoes, No shirt, No service" which rougly corresponds to the TOS, but can they discharge paying customers without cause? They could not, for example, run a whites-only website and remain a non-profit organization. I am wondering just how long the rope is.

Jn

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Voronwë_the_Faithful
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Posted: Wed 09 Mar , 2005 11:36 pm
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Speaking only for California law, a business establishment can refuse service to anyone, again as long as its not for a discriminatory reason. Whether a website that has a system of paid membership could be considered a "business establishment" under California law is another question. Some may recall a big case a few years ago in which it was held that The Boy Scouts were not a "business establishment" and therefore could not be held liable for discriminating on the basis of sexual orientation, religion, or other protected classes.


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Axordil
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Posted: Thu 10 Mar , 2005 12:02 am
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I'm not a know-it-all, but I play one online. :D

Just one of those useless facts I now need to authenticate so I don't look bad...

ah, I was close. From the Ohio General Assmbly Newsletter--

With respect to the employment-at-will doctrine in other
states, only Montana and South Dakota currently regulate termination from
employment by statute.

Or maybe right...From Labor Pains:
Employer and Employee Rights and Obligations 2003-2004:
All states (except Montana) recognize at-will employment, that is, that an employee is hired at-will and that employment can be terminated at the will of either party. This applies to managers, supervisors, staff... all employees.

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vison
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Posted: Thu 10 Mar , 2005 12:54 am
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Laws in Canada vary from province to province. In BC we have a Labour Relations Board which supposedly oversees these matters. But it is usually over union issues, etc., rather than wrongful dismissal.
It is not only employees that have misconceptions, but employers. I know employers who are sure they will be sued if they fire anyone, no matter how unsatisfactory. That is sometimes true if there is a union in the workplace, but not always, even then.

Everyone has ideas like: last hired, first fired. Not always so. Depends, as they say.

As for TORC and the unfair bannings, I think it's a lost cause. Of course it was wrong and unfair, and of course it stings. But I can't see that they are under any obligation (except the moral obligation they've ignored) to do anything. I am, frankly, surprised they went as far as they did. I had thought they would just plain stonewall and that's what they're doing, only it's not plain stonewalling, it's fancy.

These guys are not good at dealing with people. Their expertise is in other areas. They are still stuck in the mode of: it's my ball, my bat, and if you don't like it, play ball somewhere else. That they might be left playing alone hasn't yet occurred to them, or if it has, they don't care.

I haven't waded through the posts over on TORC, or all of it here. I guess I won't. But you know, we must soon put this behind us. I think all the Torc-related threads should be combined in some way and after a few more days, they should be put away in a dark room with a locked door. If we ever go public, do we really want all this angst and anger to be there, for everyone to see? I don't. It's been necessary and right, but after awhile it's just picking at scabs.

I'm all for going public, and I assume that is in the works.

This is turning into a great place. There are lots of terrific people here. I'm still navigating my way around, and haven't investigated every corner yet.

Anyway, that's my two bits worth, for what it's worth.


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Axordil
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Posted: Thu 10 Mar , 2005 1:15 am
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Vison--

That's exactly what happened to the first batch of TORC angst threads back before I joined. And yes, it would be nice if these could join them in the vault sometime in the not too distant future...

How are you feeling?

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vison
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Posted: Thu 10 Mar , 2005 1:18 am
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Axordil wrote:
Vison--

That's exactly what happened to the first batch of TORC angst threads back before I joined. And yes, it would be nice if these could join them in the vault sometime in the not too distant future...

How are you feeling?
I feel ridiculously well, actually. Not anywhere near like I was afraid of. I'm going to post more of my fascinating "journal", but I feel it is getting awfullly heavy on the memoir end and I doubt that anyone would find that interesting, so I've got to go over it and see.


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Axordil
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Posted: Thu 10 Mar , 2005 1:22 am
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Hey, memoirs are still hot, at least for the next few months. I'm predicting they'll be followed by a resurgance in the Western. :D But glad to hear you are feeling well (all things considered). :) :Wooper:

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Holbytla
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Posted: Thu 10 Mar , 2005 1:53 am
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I am going to disagree slightly with some of the things mentioned in here. It may be nothing more than semantics, but...

Voronwe, unions are certainly the exception to the statement ...

Sadly, that is simply not true. In California, and I'm almost sure in every other state and perhaps in other jurisdictions as well, employment is presumed to be at-will. This means a private employer can terminate the employee whenever they want, regardless of whether they have good reason, and have no obligation whatsoever to provide factual evidence to support the termination, or even to give any reason at all, or to give any notice. The only exceptions to this are if there is a specific contract that states that the employee can only be terminated with good cause (which almost never exists any more)

Union contracts are hardly rare, and in most of them, you will find detailed termination policies.
Also, I believe that if an employer states a specific reason for termination, and you can prove otherwise in front of a labor board, the termination may be overturned. The key is, they have to provide a specific reason. Most just say seeya.

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Axordil
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Posted: Thu 10 Mar , 2005 2:07 am
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Holby
The bright ones certainly don't give reasons that could ever be contested. Luckily, not all employers are bright... :D

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In some cases, firing the drummer helps.


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Voronwë_the_Faithful
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Posted: Thu 10 Mar , 2005 2:35 am
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holby, you are absolutely correct. How perspicacious of you. :)


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vincent
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Posted: Wed 16 Mar , 2005 10:15 pm
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well washington state is certainly an "at will employer" I found that out the hard way.

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Voronwë_the_Faithful
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Posted: Thu 17 Mar , 2005 1:17 am
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vincent, the "hard way" is the way most people seem to find out. :neutral:


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Andri
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Posted: Thu 17 Mar , 2005 7:52 am
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Well, I am glad things are different where I live. Working conditions sound very harsh on the other side of the ocean. :(

Over here, an employer cannot fire an employee unless there is a very good reason for it. Otherwise, the unions come in and that means trouble.
:devil:
Even if there is a good reason or if the employer makes the employee want to quit by making his working life difficult (demeaning behaviour towards the employee, negative discrimination towards that person etc) then the employer has to pay six-months's wages to the ex-employee as compensation.

Regarding the civil servants, well, their position is more or less permanent. There is a law stating that if a civil servants fails to do the job properly they will have repercussions but I have never heard of a civil servant losing his/her job.


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