Ask the Lawyer session focuses on wrongful discharge and 'at-will'

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LEGAL NEWS PHOTOS BY CYNTHIA PRICE

by Cynthia Price
Legal News

Renowned employment lawyer Bradley Glazier focused his remarks for the Grand Rapids Bar Association’s “Ask the Lawyer” series on the “at-will” employer-employee relationship, what laws modify it, and what constitutes wrongful discharge.

“Ask the Lawyer” is held in conjunction with, and at, the Grand Rapids Public Library. Though the employment law session last Tuesday was sparsely attended, possibly due to slushy weather, those who came were well-served by an in-depth exploration of the issue and, in some cases, one-on-one time with Glazier.

That is the intention of the sessions, to provide someone who can help steer members of the public in the right direction for legal help. The Community Services  Committee of the Grand Rapids Bar developed the series three years ago, reviving outreach that had been done in the past.

Glazier began his session asking if people could define at-will. Most present understood that it means an employee can leave a job at any time for any reason, but on the flip side an employer can terminate an employee at any time without needing to give a reason.

At-will policy comes into United States law as a result of the Industrial Revolution both here and in England. Prior to that, the notion of employer-employee was roughly equivalent to master-servant, where it was illegal for an “employee” to leave his master, and to a lesser degree for a master to get rid of a servant-employee, though the latter was never codified.
But, Glazier noted, over the years U.S. law, both through statute and common law, has created numerous modifications to the at-will rule for certain employees.

Glazier’s paper, The Law of Wrongful Discharge, which he shared with the “Ask the Lawyer” audience and which kicked off his blog,  “You’re Fired” (http://bosglazier.blogspot.com/), states:

“The erosion of the employment-at-will rule began with exceptions being created for certain classes of employees. For instance, employees represented by trade unions and civil servants were given protection against arbitrary dismissals. Later, the protection was afforded to certain members of classes historically subjected to discrimination. Today, there are a whole host of statutory restrictions or exceptions to the employment-at-will rule.”

At the March 12 session, as in his article, Glazier went on to enumerate which laws have had an effect, starting with the National Labor Relations Act (1935) and the Fair Labor Standards Act (1938). Various laws have governed both protected classes, based on race, color, religion, sex, national origin, age, and disability, to more general statutes such as the Employee Retirement Income Security Act (ERISA) which bans terminating employees in order to “prevent vesting in pension rights.”

The Americans with Disabilities Act is more complex, because it not only protected people with disabilities, but also mandated that employers make “reasonable” accommodations for employees with disabilities.

This does not mean that anyone with a disability is protected under any circumstance. “If you’re blind, you are disabled, but if you apply for a job as a pilot, you’re not protected,” Glazier said with a smile. “This covers only people whose disabilities are unrelated to their ability to do the job, with accommodations.”

Glazier also talked about the Elliott Larsen Civil Rights Act and other state laws which extend federal law, including the Michigan Whistleblowers' Protection Act which prohibits retaliatory discharge unless an employee knowingly provides false information.

Michigan played an interesting role, Glazier said, in a trend during the 1980s that created an exception to at-will that, “If you were promised that you wouldn’t be terminated, it was enforceable.” Toussaint v Blue Cross and Blue Shield of Michigan (1980) held that a contract of indefinite duration, express, oral or written, could be enforced, “as the result of employee’s legitimate expectations grounded in employer’s policy statements.” It was Toussaint that “expressly condoned... explicitly informing employees of that at-will nature of the employer’s employment policy,” according to Glazier’s wrongful discharge paper.

Glazier pointed out that since then, “Those cases have been reversed.”

He wrapped up his remarks by advising that in unemployment proceedings, the employer has the burden of proof in justifying termination, with the standard of “deliberate indifference of the employer’s best interests.”

In response to questions, Glazier also talked about the Family Medical Leave Act and the employers’ requirement to restore a qualified person taking any length leave to the same or an equivalent position, paid the same. He also got into contractual employment agreements a bit, while stressing that it is very fact-specific.

Glazier is well-qualified to speak on the subject of employment law, since he has had a successful career in employment litigation for over 25 years. He is frequently called upon to speak, including at Institute for Continuing Education seminars and for the Michigan Association for Justice; he is also a contributing author for the Michigan Chamber of Commerce and the State Bar Litigation Section’s newsletter.

He serves as an adjunct professor at Thomas M. Cooley Law School, as well as a faculty member for National Business Institute seminars. From 2008 until last year, Glazier was on the Council of the Labor and Employment Law Section for the State Bar of Michigan, but he says he declined to continue on the council due to pressures of his booming practice. “I really enjoyed that time,” he says, noting that the meetings are held on the East side of the state.

Glazier was named the Best Lawyer in Employment Law for Grand Rapids in 2012, and is admitted as a member of the American Board of Trial Advocates. And perhaps most impressive, Glazier is a member of the Million Dollar Advocates Forum, which is limited to those who won million-dollar settlements or verdicts. Glazier says his entrée into that organization was based on work he did on behalf of a distributor. ”I also had a whistleblower trial in federal court with a jury verdict of over $1 million dollars when attorney fees were included,” he says.

A trained mediator and arbitrator, Glazier serves as a case evaluator for the Kent County Circuit Court and has been appointed as a referee by the Michigan Department of Civil Rights. 

The next “Ask the Lawyer” will be on Social Security Disability, on May 14, 6:00 p.m., at the Grand Rapids Public Library downtown.