Private sector
employees
Most private sector employees are governed by the
“employment at will” doctrine. It states
that both an employer and an employee have the privilege
to end a working relationship without prior notice
or explanation. As long as the motive is not illegal,
an employer has the right to fire an employee at any
time, with or without a reason.
However, there are number of exceptions to this general
rule, under both state and federal laws. For example,
state and federal law prohibits an employer from firing
an employee because of age, sex, race, religion,
national origin, or disability. Also, a woman
employee cannot be fired because she is pregnant
or has had an abortion.
Discrimination in the private sector is not
directly constrained by the U.S. Constitution, but
has become subject to a growing body of federal and
state statutes.
Employees also have the same freedom of quitting
a job at any time; they cannot be forced to work.
In the same way, employers have no obligation to continue
with an employee’s services. When the private
sector employer hires a person, it is presumed that
both parties have the right to end the working relationship
at will. If the employee is fired without any good
cause, he or she may be entitled to unemployment compensation
benefits, but that, too, depends on certain terms
and conditions.
Government employees
Government employees are not governed by the “employment
at will” doctrine. All federal, state and local
government employees are protected by the 5th and
14th Amendments. These prohibit the government from
depriving any person of "life, liberty or property"
without due process of law. Government employees enjoy
job security, and their services cannot be terminated
under circumstances that violate the United States
Constitution or the constitution of the state in which
they work.
These employees are presumed to have “property
rights” in their jobs and the right to due process
in cases of arbitrary dismissals not linked to job
performance. Before termination, a government employer
has to offer a reasonable explanation to the employee
and also provide a proper channel for the employee
to answer those charges. If the charges are going
to impede future job prospects, the employee has the
right to a “name clearing” hearing.
The government employer may form certain rules and
regulations in the interest of the organization, which
might limit the public employee's freedom of speech
or conduct. In cases where the employee violates these
rules, disrupts the proper functioning of the organization,
and puts confidentiality at stake, the employee may
be fired for this misdemeanor.
Most civil service employees cannot be terminated
without a just cause, and the employer must prove
that the termination is in the best interests of the
agency or other organization. Unlike civil service
employees, non-civil service employees have less job
termination benefits or job security. However, there
might be certain statutes to protect them from wrongful
termination, or have employment contracts that help
safeguard their interests.
Federal civil service employees—those who are
in the competitive service and have completed a year-long
probationary period, or are in the expected service,
completing two years of service in the same or similar
positions—have the right to appeal their termination
to the United States Merit Systems Protection Board
(MSPB). The appeal has to be filed within 30 days
from the effective date of the termination.
Other government employees may have the right to
file a claim against improper termination at the U.S.
Office of Special Counsel. If the employment has been
terminated because of discrimination based on age,
sex, religion, disability, race, color, or national
origin, such employees should approach the Equal
Employment Opportunity Commission (EEOC) within
45 days from the effective date of the termination
notice. In most states, employees of the state, civil,
or classified service can approach similar administrative
bodies with their appeal. Public employees' unions
covered by labor agreements may have alternate rights
for settlement.
However, there are public sector employees who are
not protected from wrongful expulsion. For example:
political appointees, serving at the pleasure of a
governmental unit; policy-making employees; fiduciary
employees (holding a special independent position
of trust); and employees with special political loyalty.
These employees might be expelled without cause or
due to political reasons.
Union employees
Union members are not “employment at will”
employees. A union member’s employment depends
upon the terms and conditions of the union contract.
The employer cannot fire an employee at will. If the
job termination was based on a just cause, the employee
has full rights to a proper hearing before a neutral
arbitrator. The arbitrator has the power to reinstate
the employee with or without back pay, and usually
the court upholds the arbitrator’s decision.
The collective bargaining agreements between labor
unions and employers lay down guidelines for union
employees' rights. The employer is tied to the Collective
Bargaining Agreements (CBA) and the employee is
protected under such an agreement. If the employee
is fired illegally, he/she has full rights to challenge
such termination. The employee has to be informed
in writing and given appropriate reasons for his/her
expulsion. The causes given must be just and not infringe
on any of the CBA guidelines.
The agreement is formulated while keeping in mind
the best interests of the employee, and to provide
protection against any unlawful practices of the employer.
Employees have the right to read the agreement and
object to any of its provisions.
Contract employees
Certain employees—such as senior executives,
academics, performers, athletes, and some “well-placed”
employees—work under individual employment contracts
that provide protection against unjust dismissal before
completion of the contract period.
Independent contractors
Most federal and state laws do not apply to self-employed,
independent contractors. Clearly, an independent contractor
is not an employee. Independent contractors are different
from employees in many respects and, depending on
their status, will be treated differently under the
law. If it is determined that the company does not
have the right to supervise the person's time, performance,
working conditions and other related activities, there
is legally no employment relationship.
If there is a court hearing, the court decides—after
considering the facts—whether the person is
in business for his/her own purposes and profits,
or is economically dependant on the company.
Temporary employees
Temporary employees may be part of an agency or a
leasing or staffing company. They might be appointed
for an uncertain period of time to complete a particular
project or to carry out certain duties and responsibilities.
Most of such appointments do not have job security
or fringe benefits, and are not considered an employee
of the worksite employer. There are occasions when
the worksite employer is considered a “joint
employer” and is considered responsible for
discriminatory acts committed by its supervisors.
Day laborers
Day laborers are people employed on a day-to-day,
temporary basis. They either get work through a day
laborer agency, or by waiting at a designated location
for employers to hire them. Workers often do not know
from day to day whether they will get work or not.
There is no union protection for them. Despite the
non-standard nature of the day laborer/employer relationship,
day laborers are entitled to the benefits of the minimum
wage and overtime laws.
Probationary employee
Many career employees serve a probationary period
of employment that might last anywhere from week or
so to a year. This period is the most important and
last stage of the selection process. During this period,
employees are evaluated to see if they are suitable
and capable of meeting the needs of the position for
which they were hired. If it becomes apparent to the
supervisor that an employee cannot satisfactorily
perform the assigned duties, after reasonable efforts
have been made to help, the services are terminated
once the probationary contract period ends.
Federal probationary employees who are wrongfully
fired may appeal such decisions with a government
employment agency, or they can consult with an attorney
to file a lawsuit. If they have been discharged because
of discrimination based on race, color, age, national
origin, sex, religion, or disability, they can file
a claim with the Equal Employment Opportunity Commission
(EEOC).
