Dennis has some really thoughtful comments on this earlier post (which was a reply to his comments to my original post on the Delta flight attendant). His comment prompted a couple of additional thoughts. Primarily I think where we stand on this issue (the inferiority of at-will status versus just cause) is from our experience.
Dennis notes in his post that he is a teacher (I assume law school or perhaps college) and has been an arbitrator for over 30 years. I also teach (college) and my experience as an attorney is in the representation of management in both traditional labor contexts (NLRB, arbitration) as well as employment law (mainly in agencies, but occasionally in civil litigation). While I am sure Dennis has considerable exposure to employment law given his extensive experience, his post really seems to ignore (or at least give very little credit to) the usefulness of employment law remedies.
Dennis says: “Sure, anyone can sue and argue anything (as I tell my students when they say “But couldn’t you argue that. . . .”), but you won’t win if your’re an at-will employee and all you can prove is that the employer fired you for your off-duty conduct. On the other hand, you’re much more likely to win if the test is just cause, because the employer would have to prove that the off-duty conduct constituted a material breach of the employment agreement.” On a related note he says: “I excepted discrimination complaints because they require proof of discrimination. If you can’t prove discrimination (in one fashion or another), you lose. Just cause is no guarantee of justice, but it’s a heck of a lot better than nothing.” Perhaps he is trying to simplify things as a rhetorical tool, but someone with Dennis’ experience must be aware that he is completely misstating the relative burdens between a discrimination case and a just cause arbitration.
All you have to prove to state a claim of discrimination is that the employer took a job action against you (termination for example) and that you are a member of a protected class. If so discrimination is presumed. It then is the employer’s burden to prove that the job action taken was for a legitimate, non-discriminatory purpose. Dennis stated in his first post, and I agree, that Delta may have a difficult time meeting this burden (i.e. was there a policy against the blog, was there a legitimate business interest in prohibiting this off-duty conduct, are similarly situated employees being treated the same). Even if Delta makes a strong business case for its termination decision, the flight attendant still gets a chance to prove that the stated reason is pretext – and if she does she wins. She STILL has not had to prove that the reason she was terminated was prohibited discrimination. Only IF Delta rebuts the pretext argument must the flight attendant actually prove discrimination to a factfinder. The vast majority of discrimination cases are settled well before this point (and often with either a reduced penalty – like Dennis’ suggestion of a suspension – or with a monetary settlement).
Second, winning a just cause arbitration for an employer is not as difficult as Dennis makes it sound (or maybe I just don’t want Dennis as my arbitrator… kidding – he sounds much more thoughtful than some arbitrators I know of). If an employer can overcome the proof issues in a Title VII case it is also very likely to be able to prove to an arbitrator that its decision meets the tests of just cause. If there was a valid work rule in place, the employee was aware of the rule and the consequences for violating it, the rule was uniformly enforced and the punishment was related to the severity of the offense and the employee’s work record (there are some other tests, but these cover the core issues) the termination will stand. These are some of the same things an employer would proffer to win a Title VII claim at the summary judgment stage.
Third, a note about forum. It is certainly true that plaintiff’s lawyers cherry pick cases based on potential payoff, although I doubt seriously that the number of rejections for most plaintiff’s attorneys – especially if all we are talking about is termination cases – is anything close to 90%. Most plaintiff’s lawyers will at least write a demand letter with the hope for a cut of a small settlement. But what happens to the other cases? Most of the time they end up at an agency (usually the state EEO office or perhaps the Department of Labor – some non-union employees even end up at the NLRB depending on the issue) which will handle the case for free – no need to worry about paying a lawyer (unless you count your taxes – another subject entirely). The agency attorneys will advocate on behalf of the employee and seek to settle the complaint. They can be very aggressive and, especially for small to mid-size employers, there is a heavy incentive to just settle the case and make it go away.
Dennis concludes: “Take the Delta case as an example. It’s pretty obvious the FA has no legal basis for suing so no lawyer is going to take her case on a contingency basis. (And it’s not likely a fired FA can hire the lawyer by the hour.) If she were represented by the AFA, in contrast, the union would almost certainly take her case to arbitration, with a fair chance of at least reducing the termination to a suspension.”
OK, I’ll take the bait. No legal basis for suing? Again I am not intimately familiar with all the facts, but if you were a plaintiff’s attorney and gave this advice her best claim would probably be for malpractice against you. This woman should run, not walk, to her state EEO office and file a charge of discrimination based on gender – let’s get a list of every Delta employee who has been disciplined (and they better have all been terminated) for off-duty misconduct. Delta might choose to reinstate her just to avoid having to disclose this sensitive information, particularly if there has been inconsistency in application of the rule. She should also march right down to the local NLRB office and file an unfair labor practice charge, stating that her termination was for protected concerted activity (I am assuming here that at least some of the posts on her blog were related to the work conditions she and her coworkers faced – if she mentioned the union all the better). She could also talk to an AFA organizer and ask if they want to file an unfair labor practice charge on her behalf. She might also want to think about any other potential claims. Did she write in her blog about safety on the job (potential OSHA whistleblower retaliation claim) or Delta’s pay practices (DOL retaliation claim)? You get the picture.
Now these remedies are also available to most unionized employees (some may be waived under a union contract but most are not) who then may have the additional bite at the apple of a just cause arbitration. As I’ve said before, I am not arguing that just cause arbitration cases are terrible – they’re not and they provide valuable protection to employees who have them. My argument is simply that at-will employees have TONS of remedies available to them that are both free and effective. Each of these remedies creates an exception to the at-will presumption. This is why I believe at-will is a dead letter; the numerous exceptions gut the presumption. For this reason I just don’t think there is a huge difference today between an at-will employee and one covered by a just cause clause in a union contract.
