Time to Show Employment-at-Will the Door

This post is written by Senior Editor Jeff Snider. Opinions and views expressed herein are those of the writer alone.

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Long before Donald Trump was President Trump, when the world knew him as simply “The Donald,” the eventual U.S. President popularized a catch phrase in his Celebrity Apprentice reality show: “You’re fired.”  This tagline, while certainly suitable to a competition in which merely one person would land a high-profile job, would also lend itself quite well as a slogan for America’s predominant employment scheme: employment-at-will.  The default rule in every state but one, the employment-at-will scheme allows employees the freedom to quit their jobs at any time, for any reason, without fear of breaching an employment contract. It also allows employers to dismiss employees on a whim.

The basic presumption, that a hiring for an indefinite period is a hiring at will,[1] has not remained in a state of total inertia. Tort and contract encroachments have chiseled away at the employment-at-will monolith, creating a pock-marked meteorite of sorts. As Pennsylvania Superior Court Judge James R. Cavanaugh famously observed in Martin v. Capital Cities Media, Inc.:

Taking a nationwide view of the law in this area, it is apparent that what once was the corpus juris of employment relations has lately become an amorphous mass of confusion replete with holdings that defy reconciliation from one jurisdiction to the next. The at-will presumption, the citadel that once governed the field with such predictability, has been eroded of late by piecemeal attacks on both the contract and tort fronts and the entire field seems precariously perched on the brink of change.[2]

Judge Cavanaugh’s observation turned out to be rather prescient. One year after the Martin opinion, the State of Montana proceeded to abolish employment-at-will by statute in its Wrongful Discharge From Employment Act (WDFEA), which requires good cause as a basis of employee termination.[3] It has now been thirty years from the Montana WDFEA’s passage, and to date no other state in the Union has enacted similar legislation.

Encouraged by Montana’s successful passage of its wrongful discharge statute, the National Conference of Commissioners on Uniform State Laws proposed the Model Employment Termination Act (META) in 1992, containing a similar good cause requirement for employee termination.[4]  The Model Employment Termination Act, to this day, remains exactly that—a model—and has been adopted precisely nowhere.The apparent lack of popularity concerning wrongful discharge legislation should not suggest a lack of merit. A troubling ethical issue arises when employees ignorantly assume that an employer must have good cause—or at the very least, some worthwhile reason—to terminate their employment and relieve them of their livelihood. An employee may discover only too late that what he or she assumed was a necessary justification for employment termination does not, in fact, actually exist. Or, worse, one may simply be subject to a toxic work environment wherein one is continually aware of the ever-present axe waiting to fall for any reason under the sun, or none whatsoever, all too often with no other realistic prospects of employment to which to escape.

Legal scholars have recognized the need for a nationwide wrongful discharge statute for at least forty years.[5] The United States of America is one of the last industrialized nations in the world not to afford employees wrongful discharge protection.[6]

The employment-at-will doctrine offends contemporary notions of fairness[7] towards everyday workers, who, as the drafters of META note, infrequently prevail in wrongful termination lawsuits.[8] At the time of the META proposal, the drafters estimated that the overwhelming majority of successful wrongful termination plaintiffs occupied at least middle-management level positions or above, or were otherwise highly-paid professionals.[9] It would logically follow that those individuals in high paying positions would be the plaintiffs who could obtain attorneys for potentially lucrative claims with the least difficulty. The run-of-the-mill, paycheck-to-paycheck worker in the trenches, on the other hand, could ordinarily scarcely afford legal help in pursuing wrongful termination action. In addition to favoring plaintiffs with potentially high-value claims, the employment-at-will scheme creates a range of unpleasant ramifications—including health problems and mental breakdowns—for a severed laborer, in addition to a sudden lack of livelihood in an ever-waffling economy.

Employment-at-will is no less kind to employers. Inconsistent application of the at-will doctrine and its common-law exceptions, coupled with the propensity for cataclysmic awards by juries sympathetic to wronged employees, creates uncertainty and litigation-related expenses that smaller businesses and their insurers could have difficulty absorbing. Employers remain subject to common-law remedies, including punitive damages for tort claims.  The META drafters note damage awards in the millions for individual plaintiffs, alongside attorneys’ fees.[10] If employees deserve a legitimate reason for an employer to terminate their livelihood, employers likewise deserve both stability and predictability in terms of the law that jurisprudence applies to wrongful termination cases across American jurisdictions.

The solution: a long overdue national statute. A statutory solution to the problems inherent in employment-at-will would address the concerns of both employers and employees. Employers and employees deserve fair and reasonably certain expectations and consistent treatment under the law.

Job security is perhaps the most important factor to employees, alongside base pay.[11] Indicative of this is union employees’ frequent willingness to endure toxic and abusive work environments until retirement or death for the simple benefits of job security and living wage that collective bargaining offers.  A statutory abolishment of employment-at-will would offer employees some consistent expectation of job security under a good cause standard.

Employers have a different concern: remaining profitable and continuing to exist. Employers need to be able to rid themselves of employees who won’t work, don’t work, negatively affect workplace morale, or otherwise jeopardize the employer’s possibility of continued existence. Employers would benefit from a different kind of security: the ability to dismiss deadwood employees for a good cause without fear of unreasonable lawsuits and gargantuan damage awards from juries. A workable national statute would reduce the uncertainty which employers commonly face on the litigation front: instead of the bombardment of common-law tort and contract claims, a national statute could limit potential damages and remedies as well as the causes of action against employers.

A national statutory solution could also provide protection for small businesses by way of an opt-in mechanism. A working definition of “employer” could potentially include businesses that employ five or more employees over a fixed length of time for the purpose of statutory coverage, presumptively excluding the smallest employers or companies using temporary or limited-time labor. However, a nationwide statute should allow the smallest employers to opt into statutory coverage (thereby opting out of common law causes of action) if they so choose, by providing for a rebuttable presumption of statutory exclusion. Therefore a small, exempt employer within the definition of the statute, excluded from statutory coverage, could simply provide evidence of a contract with employees wherein employees could only be terminated for good cause after a probationary period. A small employer could then opt into statutory coverage if it is in the employer’s best interest.

Although there is no perfect solution to the employment-at-will litigation juggernaut, Montana’s wrongful discharge statute and subsequent thirty year history demonstrate that the leviathan may be tamed and managed given the appropriate statutory structure. The goal of a national statutory framework should not be to completely eradicate uncertainty, which is an unreasonable expectation, but rather to reduce, manage, and corral uncertainty. A national statute would offer employees some job security, employers would not face the prospect of huge jury awards, and the smallest of employers, who frequently struggle to stay afloat in the first place, could have the option of statutory coverage or exemption based on their own business needs and goals. The legal profession would benefit from a correspondingly tightened framework of developing stare decisis, confined to a progressively maturing arena of national statutory litigation. By showing employment-at-will the door and enacting a national statute featuring a good cause standard, damages limitations, and provisions for small business protection, everyone walks away a winner.

[1]   H. WOOD, A TREATISE ON THE LAW OF MASTER AND SERVANT § 134, at 272 (1877).

[2]   Martin v. Capital Cities Media, Inc., 354 Pa. Super. 199, 208 (Pa. Super. Ct. 1986).

[3]   MONT. CODE ANN. § 39-2-901 to -915 (2017).

[4]   See MODEL EMPLOYMENT TERMINATION ACT, § 1(4), http://www.uniformlaws.org/shared/docs/Employment%20Termination/META_final_91.pdf [hereinafter MODEL ACT].

[5]   See generally Clyde W. Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 VA. L. REV. 481 (1976).

[6]   Theodore J. St. Antoine, Employment-At-Will—Is the Model Act the Answer? 23 STETSON L. REV. 179, 180 (1993).

[7]   See Jack Stieber & Michael Murray Article: Protection Against Unjust Discharge: The Need For A Federal Statute, 16 U. MICH. J.L. REFORM 319, 321 (1983).

[8]   MODEL ACT at 6.

[9]   See id.

[10]   Id.

[11]   Susan Adams, Job Security A Top Priority For Global Workers, FORBES.COM (July 31, 2014, 10:19 AM), https://www.forbes.com/sites/susanadams/2014/07/31/job-security-a-top-priority-for-global-workers/#1edca3851acc.

The Trouble with Vaccines

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Do vaccines cause illnesses?  I thought this was a uniquely American problem, but a recent court decision in Europe has challenged my belief.  In June, the European Union Court of Justice ruled against vaccine maker Sanofi Pasteur, in a suit challenging that a hepatitis B immunization could have led to a multiple sclerosis diagnosis a year later.[1]  NBC News’s sensational headline speaks volumes about this decision:  “EU Court Says Vaccines can be Blamed for Illnesses Without Proof.”[2]

This post is written by Associate Editor Russell Gribbell. Opinions and views expressed herein are those of the writer alone.

The Court of Justice obviously did not use such wording; instead it said a vaccine could be considered defective if there is “specific and consistent evidence.”[3]  Such evidence includes the time between a vaccine administration and the occurrence of the disease, an individual’s previous state of health, the lack of any family history of the disease, and a significant number of reported cases of the disease occurring following vaccination.[4]  Vaccine expert Dr. Paul Offit quipped that “[u]sing those criteria, you could reasonably make the case that someone should be compensated for developing leukemia after eating a peanut butter sandwich.”[5]

In the United States, the United States Court of Federal Claims hears vaccine cases in the Vaccine Claims/Office of Special Masters court (“Vaccine Court”).[6]  The National Vaccine Injury Compensation Program established a no-fault compensation program for petitioners.[7]  As a result of this program, anybody with any grievance can sue.  Autism and the MMR (measles, mumps, rubella) vaccine link has generated the most hand-wringing this century.  The Vaccine Court put that to bed using science to reject all theories that linked the two.[8]

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Sadly, rumors and fear persist in our country.  Parents still try to opt-out of vaccines.  This has led to dangerous medical emergencies.  The Disneyland measles outbreak in 2015 was among the most publicized.  No deaths were recorded, but 147 people were sickened, including 159 more in Quebec.[9]  More epidemics will occur if people don’t start rejecting the falsehood that vaccines cause illness and allow themselves, and their children, to be vaccinated.

The Vaccine Court needs to reject the EU ruling.  They should follow the results of the autism proceedings as evidence that science is the only way to prove if a vaccine is safe or not.  Even “vaccine attorneys” advocate that people should be vaccinated.[10]  As law students, we are told to “get our facts straight.”  I would encourage us to “get our science straight” as well.

We need to get our science straight to advocate on behalf of vaccination.  The unscientific approach used by the EU court will further encourage the anti-vaccine camp.  Far too many people still believe the “alternative facts” about vaccines.  Unvaccinated people do not just affect themselves, they affect us all.

For example, the Carter Foundation is involved in eradicating the guinea worm disease, which is set to be only the second human disease eradicated after smallpox.[11]  The guinea worm is a parasite, and therefore the solution is not via vaccination, but is being implemented through education and techniques to clean the water in the afflicted areas.[12]  Education about disease is just as important as the science behind the cure.  If even one afflicted area refuses to work with the Foundation, then the parasite will never die.  The same can be said for vaccinations, and is exactly why problems like the measles outbreak occurred at Disneyland.

All of us involved in the legal field need to stay educated on scientific advances and trends so we can advocate knowledgeably on issues such as vaccines.

[1] See Case C-621/15, W v. Sanofi Pasteur MSD & Others, Curia (June 21, 2017), http://curia.europa.eu/juris/document/document.jsf?text=&docid=192054&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=146995See also EU Court Says Vaccines can be Blamed for Illnesses Without Proof, NBC News (June 21, 2017, 12:32 PM), http://www.nbcnews.com/health/health-news/eu-court-says-vaccines-can-be-blamed-illnesses-without-proof-n775101.

[2] EU Court Says Vaccines can be Blamed for Illnesses Without Proof, supra.

[3] EU Court Says Vaccines can be Blamed for Illnesses Without Proof, supra.

[4] EU Court Says Vaccines can be Blamed for Illnesses Without Proof, supra.

[5] EU Court Says Vaccines can be Blamed for Illnesses Without Proof, supra.

[6] United States Court of Federal Claims: Vaccine Claims/Office of Special Masters, http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last visited June 22, 2017).

[7] Id.

[8] See Autism Master File, Various Petitioners v. Sec’y of Health & Human Services, USCFC (filed Jan. 12, 2011), http://www.uscfc.uscourts.gov/sites/default/files/autism/Autism%20Update%201%2012%2011.pdf.

[9] Measles Outbreak Traced to Disneyland is Declared Over, NBC News (Apr. 17, 2015, 3:18 PM), http://www.nbcnews.com/storyline/measles-outbreak/measles-outbreak-traced-disneyland-declared-over-n343686.

[10] Meredith Wadman, Vaccines on trial:  U.S. court separates fact from fiction, Science Mag. (Apr. 27, 2017, 1:15 PM), http://www.sciencemag.org/news/2017/04/vaccines-trial-us-court-separates-fact-fiction.

[11] Guinea Worm Eradication Program, The Carter Center, https://www.cartercenter.org/health/guinea_worm/index.html (last visited July 11, 2017).

[12] Guinea Worm Eradication Program, supra.

The IDEA and Endrew F.: Celebration or Uncertainty?

This post is written by Editor-in-Chief Desiree Isaac. Opinions and views expressed herein are those of the writer alone.

While taking Supreme Court Seminar with Judge Amul Thapar, I played the role of Chief Justice John Roberts for a semester, writing the majority opinion for our mock court in Endrew F. As a law student hoping to practice education law and civil rights for children, this case was important to me for several reasons. I specifically set out to “hear” this case and write the majority opinion because I desperately wanted to immerse myself in a subject I will likely never be exposed to in a typical class, to create a solid writing sample in this area for professional use, and I knew the Court’s actual decision would impact me personally and professionally going forward.

Education holds a special place in my heart. I grew up in rural Eastern Kentucky where resources were scarce and sports were (and still are) more highly valued than learning. That never stopped me from pushing myself to learn more and taking advantage of opportunities outside my home to sharpen my academic skills and become competitive in the outside world. As a first-generation college student, I navigated the waters of higher education alone, but I excelled academically through high school and continued a path of excellence through college. But, what about those who are never given the tools they need and are entitled to?

Although I majored in political science and public relations, I spent some summers working with dyslexic children. I found my passion in helping children with special needs, and that passion grew even stronger when the sweetest little red-headed boy in my life (probably also in the world) was diagnosed with autism. Although this handsome young man is not my own, my heart is overflowing with love, admiration, and astonishment for this child. Once Nicholas was diagnosed and began receiving the appropriate therapy, he made considerable improvement in his verbal and physical skillsets. He may not be able to communicate his thoughts and feelings in a “typical” fashion, but he amazes me with his intelligence. He can count higher than I, a third-year law student, can. He knows road names, directions, and locations better than any map. He can hear any song just one time and remember the lyrics and beat indefinitely.

But, what happens at school for children with special needs? Do they receive the resources they need to learn academic and life skills? Do their parents even know they are legally entitled to receive certain things? Importantly for us, will Endrew F. change the answers to these questions, or does the opinion leave us with more uncertainty?

The IDEA (Individuals with Disabilities in Education Act) provides for federal funding to state and local agencies upon meeting certain conditions outlined in the Act. Among these conditions is  a requirement that students with disabilities be provided “a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living .”[1] These words created confusion among educators, parents, and courts, ultimately leading to the decision in Endrew F. 

Chief Justice John Roberts, writing for a unanimous Court, held that under the IDEA, schools must provide children with disabilities an IEP (Individualized Education Program) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[2] I must admit that when I first read the opinion, I smiled. I was excited. The Supreme Court of the United States had the final word and decided that certain circuits’ “merely more than de minimis” benefit standard set forth in various cases was not enough for these particularly vulnerable members of our society.[3] Children across America, regardless of what federal court of appeals circuit boundaries they live within, would now be definitively entitled to an IEP aimed at progress and advancement, rather than just complacency.

The Court noted that this more demanding standard was necessary “to remedy the pervasive and tragic academic stagnation that prompted Congress to act.”[4] The Court even highlighted the nature of special education, declining to further define “appropriate progress” specifically because “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.”[5]

One attorney went so far as to liken Endrew F. to one of the most well-known civil rights cases of all time, dubbing Endrew F. “the Brown v. Board of Education moment for the disability community.”

But, is this enough? Will this really make a difference for children with disabilities? Courts are not meant to act as legislatures. Courts are meant to apply the law. I am not faulting the Supreme Court for staying within its bounds as a judicial body, I am simply contemplating the aftermath we now face.

While the words and phrases used in the opinion offer hope and a distinctly improved outcome for children previously provided with a lesser “merely more than de minimis” benefit, the ruling does not carry the weight that many hoped for. Much discretion will still remain with educators, as it should, but how will courts making decisions on whether a child’s IEP is adequate know what equates appropriate progress on an individual basis?

As courts are obviously aware, disabilities vary in impact on particular children. Even within the same category of disability such as autism, diagnoses run on a widely-varying spectrum, with some children remaining high-functioning and others severely impaired. This will prove to be a difficult issue for courts to tackle, as judges are not required to undergo training for each subject they must decide in any given case.

Let’s not forget about parents. While parents mean well and generally want the best for their children, will parents of students covered by the IDEA be aware of what this case means for their child’s IEP? Do parents know that legal remedies exist under the IDEA and other federal and state acts or how they would go about pursuing these remedies? What do we, as a profession and as a society, need to do to better inform parents, educators, and arbiters of these principles and how to implement them in order to foster a more welcoming and productive educational environment for children with disabilities?

What does this mean for schools in impoverished areas? Although funding for educational programs can be provided through various sources, many schools face serious economic challenges and this can often impact the quality of education received by students, particularly those with special needs requiring specialized instruction.

I have questions, but unfortunately no answers. These issues will have to play out in the lives of today’s youth, but I have hope that this will pave the way for future students with disabilities to live and learn at their highest capacity.

To read the Court’s full opinion, click here.

 

[1] 20 USCS § 1400 (d)(1)(A).
[2] Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.Ct. 988, 999 (2017).
[3] Endrew F. v. Douglas Cnty. Sch. Dist. Re-1, 798 F.3d 1329 (10th Cir. 2015), D.B. ax rel. Elizabeth B. v. Esposito, 675 F.3d 26 (1st Cir. 2012), Todd v. Duneland Sch. Corp., 299 F.3d 899 (7th Cir. 2002), and O.S. v. Fairfax Cty. Sch. Bd. Of Dirs., 804 F.3d 354 (4th Cir. 2015),
[4] Endrew F., 137 S.Ct. at 999.
[5] Id. at 1001.

 

An Exciting Year Ahead: Twenty-One New Members and the Twenty-First Century

New members, new topics, and new technology abound for the Northern Kentucky Law Review! 

This past Saturday, June 17th, twenty-one new members (now Associate Editors) attended orientation where they were provided with endless baked goods and invaluable training. Representatives from Lexis, Westlaw, and the Chase College of Law Library presented tools to assist new members in selecting publishable topics, writing their student notes, and editing others’ pieces.

Alex Kubala, a third-year law student and Associate Editor, said, “The orientation was very informative, and the editors have worked very hard to increase the law review’s online presence, ensuring Chase’s continuing prestige in Kentucky’s legal community.”

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Desiree Isaac, Editor-in-Chief, and Patrick Quinn, Executive Editor, also discussed their personal experiences with Law Review and how partaking in this prestigious organization has helped them both professionally and academically.

Executive Editor Patrick Quinn recounted of his experience as an Associate Editor, “The research and writing skills developed through work on my Law Review note over the summer gave me the opportunity to have my most successful semester in the Fall.”

This year, the Northern Kentucky Law Review will tackle three topics and publish a journal for each: cyber-security, profiling, and general law. Members will have an opportunity to be published along with other experts in each topic area.

In addition to journals, there will be a cyber-security symposium on Friday, October 13, 2017 and a profiling symposium on Friday, March 9, 2018. The Internet of Things will be one of many topics discussed at the cyber symposium and the profiling symposium will likely be broken into three subcategories: racial profiling in criminal law, religious profiling in immigration law, and profiling in the practice of law. The symposia will include speakers from various areas, as well as our own Law Review members.

As you likely have gathered, the Northern Kentucky Law Review is also stepping in to the 21st Century, establishing an online presence. In addition to this blog, we are also now on Facebook and LinkedIn. Please like, connect with, and follow us on all platforms to ensure you receive updates that are applicable not only to law students and legal professionals, but also every individual who is impacted by the law (i.e. everyone).