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Excerpt from They Can't Do That The Twenty-Five Myths of Employment Law
A myth is something that a lot of people believe is true or should be true but really is false. Employment law is especially complex andconfusing, so it is ripe for these types of beliefs. The problem comes when an employee relies on a myth or the word of an ill-informed friend when making crucial decisions about his or her employment. In my practice of helping employees, I have found several common myths that employees believe can hurt them when dealing with an employer.
The following are the top twenty-five general myths that most people believe are true about employment law. Most of these myths deal with issues of common fairness and doing the right thing for the workers.
Please note that while generally all these are myths and do not exist, in some states the elected officials in order to achieve fairness have turned one or more of these myths into actual law. Before you act, do your homework. Use the information provided in the appendices at the back of this book to research your state's laws.
Myth 1: A court can immediately stop my employer from terminating me.
The truth is that in employment law, unlike in criminal law, there are no emergency motions or quick fixes that can prevent an employer from terminating an employee. If the employee is a member of a union that has a contract with the employer, the employee may be able to get the union to fight against termination quicker than a nonunion employee could. There is no such thing in employment law as a temporary restraining order (TRO) that can keep the employer from terminating the employee.
Myth 2: Employers are legally required to have a legitimate or valid reason for any termination.
If the employee is considered at will that is, not under a union contract or an employment contract the employer does not need any reason for termination. The exception to this is an employer who terminates an employee due to reasons of specific discrimination. Then the employer is subject to a legal complaint, and in the legal proceeding the employer will be required to provide the court with a nondiscriminatory reason for the termination.
Myth 3: By law, a termination is not effective until the employer gives the employee written notice of termination.
Without a union or other contract, the employer is under no legal obligation to inform the employee of the reasons for the termination. At will employees can be terminated either verbally or in writing. There is no legal requirement for a written notice of termination. Again, in a discrimination complaint the employer may want to have such a document as evidence to prove that the reasons for the termination were not discriminatory.
Myth 4: The employer must follow all the steps of progressive discipline that are listed in the employee handbook.
An at will employee can be legally terminated without following any of the steps of progressive discipline found in the employee handbook or the policies in the employer's policy book. This is a source of much confusion, especially since the employee is required to follow the rules listed in the employee handbook or the employer can accuse the employee of a serious rule violation. Unfortunately the law does not require that the employer follow its own rules. However, if the employee files a discrimination complaint, the employer may be required to explain why it ignored its own rules and policies. Even in an action to obtain unemployment benefits, an employer that does not follow its own rules and policies is considered suspect as to the true reason for the termination. Union contracts and other types of employment contracts usually require certain steps of progressive discipline, except for what are considered to be serious violations.
Myth 5: My employer/manager/boss cannot legally give friends or relatives jobs or promote them over the current employees.
As long as the better treatment is not due to discrimination and is not contrary to a union or employment contract, the employer is free to hire or promote friends and relatives. Currently, no state makes it against the law to practice nepotism providing jobs for family members in the workplace. If an employee files a discrimination complaint against this employer, the hiring or promotion will probably be investigated to see if it violated the current discrimination laws.
Myth 6: An employee should never agree to a separation or severance agreement because he or she can get more money than is offered by suing the employer.
Each separation or severance agreement should be reviewed by a local employment attorney to make sure that all terms conform to the current law and that the employee is aware of the rights that he or she is giving up. In the majority of cases, taking an employer to court will not necessarily provide the employee with a larger windfall, unless the actions of the employer were so egregious that a court will find for the employee. Please remember that suing an employer does not always mean that the employee will end up with more money, especially after court costs and legal fees are deducted from the award. Again, the best bet is to have a local attorney review the agreement, advise the employee, and possibly enter into negotiations for additional benefits.
Myth 7: An employee cannot get unemployment benefits if he or she is getting severance from the employer.
Absent a clause in the severance agreement that prohibits the employee from obtaining unemployment benefits, a worker can get unemployment benefits even with a severance agreement. The employee must be totally off the company payroll before applying for unemployment benefits. In some cases the employer will pay the severance to the employee out of the payroll system. That may mean that the employee continues to get normal paychecks for a period of time until the severance amount is paid. In these instances the employer may then retain the employee as still employed in an inactive status. Many times the employer will do this while assisting the employee to find a new job through an outplacement association. That will delay unemployment benefits until the severance is paid in full. In the majority of cases the employee is provided with a check for the full amount of severance on the date of separation from the employer and can apply for unemployment immediately following.