If you expand your business to America, you’ll quickly need to get up to speed with the working environment in the US.
You’re probably already aware of the fact that employers in the US have much more freedom over firing members of staff. In every US state – except Montana – workers are considered to be at-will employees. This means that an employer is able to fire a member of staff with or without notice. Even though at-will employers may terminate employees for any reason or no reason at all – you may not terminate an employee for a discriminatory reason. It’s also important to stress that staff are also able to end the relationship at any time, with both parties seen as having equal ability to end the working arrangement. In Montana, the only time employers can practice at-will employment is during the employee’s probationary period. Even though most states provide for at-will employment, many states have caveats in their state regulations.
That looser employment arrangement might be typical in the US, but it doesn’t mean that there are no rules over wrongful termination.
Wrongful termination in the US
There is no one law that governs the issue of wrongful termination. Instead, this is covered by different rules outlined at state and federal level as well as by the courts.
It’s also worth noting that not every worker is an at-will employee either. Some people are members of unions or collective bargaining arrangements that outline what should happen in case of termination – or have contracts or company policies that cover this facet. Clearly, if an employer breaches these agreements then an employee can raise a case for wrongful termination if those terms are later breaches.
But you don’t have to have an arrangement such as this in place in order to have an issue with wrongful termination. At-will employees could have a case for wrongful termination if the decision falls foul of one of the following factors:
- Violated public policy: This claim might be brought by an employee who was fired for refusing to carry out an action that would have led them to break the law.
- Discrimination: Employees cannot be fired because of their race, nationality, religion, gender, or age. It’s not acceptable to fire someone because they’re on parental leave or pregnant or also on medical leave. It is possible to terminate a non-performing employee in these circumstances, but this cannot be the cause.
- Good faith and fair dealing: A case might be brought against an employer if they choose to fire a member of staff just before they are due a bonus, for example.
- Whistleblowers: There are laws in place to protect whistleblowers who choose to raise a serious legal or safety issue with the appropriate authorities.
Wrongful termination appeals
Employees are able to appeal wrongful discharge through their business’ human resources department. If this doesn’t resolve the matter, and they think there is still a case for wrongful dismissal, the US Equal Employment Opportunity Commission (EEOC) has been established to handle cases of employment discrimination – including appeals to decisions made by federal agencies. The details of filing a complaint with the EEOC can be found here.
Each state has its own laws and procedures for this – indeed, you’ll quickly get used to the different nature of each state’s laws – so it’s vital to take time to understand what this means for you as an employer.
If you have any questions about employing workers in the US and want us to help with this, get in touch today.