Magazine article Workforce Management

Discovering the Law of Gravity

Magazine article Workforce Management

Discovering the Law of Gravity

Article excerpt

A feeling of disapproval spread through the jury box toward my client and me like prairie fire on dry buffalo grass.

JULY 1982. TOPEKA, KANSAS. Jury selection in an employment-discrimination case. The 103 degrees outside was cool compared to the heat I felt from these potential jurors. The temperatures in the jury box reached the flash point when I made a remark that was perfectly simple and legal.

My client, the "Mega Corporation," had fired a poorly performing employee with long-standing attendance and attitude problems. The employee then sued my client for discrimination. During jury selection, I explained the basic legal principle of "employment at will," that an employer has the right to fire any employee at any time for any reason, or even "no reason." To the court, the lawyers and my client, it was a simple statement of law. But a middle-aged woman in the front row raised her hand and asked, "You mean the Mega Corporation fires people for no reason?" The panel's temperature began to rise. These people knew about American justice from cop and lawyer television shows: the Miranda warning, the right to an attorney and due process. And a feeling of disapproval spread through the jury box toward my client and me like prairie fire on dry buffalo grass. I had just discovered the natural flow of people's beliefs in the courtroom; I had just discovered gravity.

Law school professors and knowledgeable labor lawyers had taught me that "at-will employment" is the law. And while the judge, the lawyers and my corporate client knew that the implied covenant of good faith and fair dealing meant nothing in an at-will employment context, it meant plenty to this Topeka jury panel. To them, some things were as certain as gravity: employees should be warned by their bosses about bad behavior; everyone deserves a second or third chance; and it is not fair for a company to fire an employee without cause. Trying to convince this panel otherwise was like trying to prove that Isaac Newton was wrong.

"Have you ever tried to quit a job and your employer told you that you had to stay?" I asked the woman.

"Well, no," she replied.

"Have you ever given your boss a letter of resignation and she told you that she would not accept it and to get back to work?"

"No, and she had better not," blustered the juror. A new gravitational pull was discovered.

"What applies to you as an employee also applies to your employer," I explained. "Employees can quit a job anytime for any reason, whether that reason is more money, better hours or less work. And employers have that same right. At-will employment works both ways." And suddenly, the jury got it. The gravitational pull was reversed.

After trying employment cases for 32 years, I have become an expert on gravity. Two other examples illustrate the force of a jury's gravity:

The notion of refusing to tell an employee the reason for termination is "anti-gravity." Because of possible liability issues, legal treatises and lawyers often advise employers to decline to give an employee a reason for being fired, or to provide only a general reason. A jury's gravity, on the other hand, is that the employee should be terminated only after the specific reasons for the job action have been explained and the employee has been given an opportunity to correct the problem. A jury's gravity is that "no firing should be a surprise. …

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