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If fairness is the governing principle of your personnel rules, they will usually satisfy the law. Editor's Note: This is the final segment of a three-part series discussing the practical and legal considerations of hiring and firing for park district employees. By Janet E. Goldberg and Janet Hedrick Underneath all the statutes governing employment relations is a longstanding and traditional rule of law known as the employment-at-will doctrine. It states that, in the absence of an employment contract providing that the employment relationship will continue for a specified period, e.g., one year, either party is free to terminate the relationship at any time, for any reason. Title VII, the Age Discrimination in Employment Act (ADEA), the Illinois Human Rights Act and all the other statutes limiting an employer's discretion regarding whom he may fire and for what reasons are exceptions to the traditional at-will rule. In relatively recent years, Illinois courts, among others, have fashioned a common-law (or judge-made, as opposed to statutory) exception to this rule: the doctrine of wrongful discharge. Wrongful discharge The wrongful discharge doctrine, also called retaliatory discharge, prohibits discharge for any reason that violates the public policy of the State. Just what constitutes public policy is not clearly defined. In 1981, the Illinois Supreme Court defined public policy generally as "what is right and just and what affects the citizens of the State collectively." The court distinguished subjects of public policy from matters that are purely personal, and said that "a matter must strike at the heart of a citizen's social rights, duties, and responsibilities" before a judicial remedy will be provided. Some examples of reasons for discharge that courts have found to violate public policy are: • filing a workers' compensation claim, • cooperating with police in informing on a fellow employee, • providing information to the Guardian and Advocacy Commission, • refusing to evade jury duty, • bringing to the company's attention possible embezzlement by the vice-president and treasurer, • refusing to commit perjury and • refusing to violate various other criminal statutes. Thus, an employer is treading on dangerous ground whenever he fires an employee for exercising a right specifically granted him by statute. Continued on page 26 Illinois Parks and Recreation 11 September/October 1985
Employment policies The wrongful discharge suit is particularly dangerous to the employer because, in most cases, the trial will be before a jury, whose sympathies will very often be with the plaintiff. If the employer loses, he is liable not only for reinstatement and back pay, but also for punitive damages as well. Punitive damages can be extremely costly, much more so than the effort it would take to avoid liability in the first place. Contracts If there is a written employment contract, of course, the employee cannot be fired if termination would violate the terms of that contract. It is important to reread the contract before taking action. In some cases, however, a contract may be found to exist even if there is no written document. If the employee is given oral assurances that he will not be fired or that his job will continue for a certain period of time, a court may decide that he is not an employee at will, and that the employer must abide by his word. In Illinois and other states, courts have held that provisions in personnel manuals may constitute an implied contract. For example, a list of dischargeable offenses may be read to mean that no one will be discharged for any other reason. Employers can reduce the likelihood manuals will be considered contracts by including a disclaimer at the beginning of the manual expressly denying any intention to create contract rights. However, the law in this area is not completely settled, and it is a good idea to operate on the assumption that personnel manuals may Illinois Parks and Recreation 26 September/October 1985 be held to constitute an employment contract. Employers should make every effort to strictly follow the policies and procedures contained in the policy manual. For example, if the manual provides that employees will be given a written warning and an opportunity to improve their performance prior to discharge, then that policy should be carefully followed in every case. Constitutional due process The Constitution provides another good reason to be sensitive to implied contractual rights contained in policy manuals and oral assurances of continued employment. Such implied rights may create a property interest in the employee's job, which then cannot be taken from him by a public employer without due process of law. The Supreme Court has concluded that some public employment relationships can confer property and liberty rights. Because contract rights are considered to be property, a property interest can be created where the employee has a statutory, contractual or implied contractual right to continued employment. In 1972, the Supreme Court ruled that a state college teacher had a constitutionally protected property interest in his job because policy guidelines issued by the state education system indicated that teachers who successfully completed a probationary period could expect continued employment. Even though there was no written contract or official grant of job tenure, the court found that the college had an informal tenure system that was analogous to an implied contract right — a protected property interest. Recently, the Supreme Court ruled that public employees who are protected from discharge except for "just Continued on page 30 Illinois Parks and Recreation 27 September/October 1985
Employment policies cause" must be given a pretermination opportunity to respond to the charge against them, as well as a post-termination hearing. Liberty interests Public employees also have liberty interests that are constitutionally protected. The concept of "liberty" includes not only the freedom from bodily restraint, but also the freedom to make contracts and to engage in any of the common occupations of life. An employee's liberty to do these things may be put at risk if charges are levelled against him that might seriously damage his standing in the community. These could include dishonesty or immorality, or an employer-imposed stigma or other disability that forecloses his freedom to take advantage of other employment opportunities. Once it is established that an employee has a protected liberty or property right, he is entitled to due process before he can be deprived of that right. In practice, this usually means that the employee is entitled to an oral hearing, adequate notice and an impartial decisionmaker before being reprived of his job. Oral hearings Oral hearings are most useful for resolving factual disputes. If an employee disputes his supervisor's version of the facts leading up to his discharge, or if he thinks extenuating circumstances warrant a lesser penalty, he should be allowed to present his side of the story, explaining his actions and relating facts that mitigate their gravity. It may also be useful to allow the employee to have one or two witnesses at the hearing to support his story. Adequate notice is prior notice to the employee of the charges against him and the facts supporting them, and of the opportunities that are available to influence the decision-maker. The notice must allow the employee a meaningful opportunity to meet the charges, present his case and, in the context of a liberty right, to clear his name.
The requirement of an impartial decisionmaker would disqualify anyone with a personal stake in the outcome of the proceeding, one who has a personal conflict with the employee, or one who may have prejudged the facts connected with an employee's discharge. This suggests that an employee's immediate supervisor should not have the ultimate authority to discharge him. Rather, he should submit his complaints about the employee to a personnel manager, along with a summary of the relevant facts. That person can then make an objective judgment about whether discharge is warranted. Implications for personnel policies The various state, federal and common-law restrictions on the employment relationship which were discussed in this series have very practical consequences for the park district's personnel policies. A discussion of those implications and some practical suggestions follow. Applications and hiring As a general rule, applications should ask only for information that is necessary to determine whether the applicant is qualified for a specific job. Questions relating to membership in any protected class should be avoided. They are almost always irrelevant to job performance and may, therefore, be construed as having no purpose other than a discriminatory one. Items that might indirectly reveal protected characteristics should also be omitted. Examples include questions regarding membership in clubs and organizations, the birth place of the applicant or his parents and requests that applicants furnish pictures of themselves. If any information regarding age, sex, or other characteristics is necessary for employee insurance coverage and benefit plans, it can be obtained after the applicant has been hired. Applicant tests must be validated according to the EEOC's Uniform Guidelines if they have an adverse impact on protected individuals. Records should be kept documenting Continued on page 32 Illinois Parks and Recreation 30 September/October 1985
Employment policies the impact of tests and other selection procedures on various classes of employees and applicants, and demonstrating their validity. Avoid making decisions based on knowledge and skills that are normally learned in a brief orientation period. Also, do not evaluate entry-level applicants' suitability for higher-level jobs if the skills required for those jobs will develop through training and experience. Both of these practices can create an unnecessary disparate impact, and are discouraged by the Uniform Guidelines. Keep records on every applicant indicating why he was hired or rejected. This practice will make the defense against a future discrimination suit much easier. Cryptic notations or codes on the application form are not a good way to accomplish this, however, because they can be misinterpreted. A brief explanation of the applicant's shortcomings (or virtues) is much more helpful than a notation such as "not qualified" or "unimpressive." When interviewing handicapped applicants, keep in mind that accommodations must be made for qualified applicants unless doing so would be prohibitively expensive or unduly disruptive. Handicapped individuals cannot be rejected because their presence would increase insurance rates, or because of fear that the person's condition will worsen. To avoid liability for sexual harassment, interviewers should avoid excessive familiarity with applicants and should never extend social invitations, even after the formal interview has ended. If the applicant declines such an invitation, and his application is later rejected, the resulting inference can be very damaging. Be careful not to create an employment contract unless you intend to do so. Assurances that employment will continue for a certain length of time, or that employees will be discharged only for specified offenses, can create implied contracts, whether conveyed orally during an interview or written in a policy manual. Such manuals should contain a disclaimer of intent to create a contract. This can avoid any possible misinterpretation. Termination In order to avoid legal liability for discriminatory practices, an employer must have a legitimate reason for any discharge. To ensure that every discharge is legitimate, he should institute a system of reasonable rules and uniform, fair enforcement. To start, publish the park district's policy forbidding discrimination, and establish a system of performance appraisal and progressive discipline. All employees should be made aware of the level of performance expected of them, and of the standards that will be used to evaluate it. If the standards of performance and evaluation are written, they can more easily be applied uniformly and fairly. Warnings should be issued to give an errant employee notice of the problem and an opportunity to improve his performance. It is very important that accurate records be kept for every employee. Every performance appraisal and warning should be written, and must be honest and objective, even if it will hurt the employee. A supervisor who gives a poor employee a satisfactory evaluation out of compassion can unwittingly cause serious problems in defending a future discrimination suit. An employer whose defense is that the disgruntled employee was fired for incompetence will have a lot of trouble substantiating his claim when faced with a file full of positive performance reports. Before termination, the person making the decision should investigate the facts to be sure that discharge is warranted. If the charge is against a protected individual, he should examine the records of others who have committed similar offenses in the past to make sure that the penalty is not disproportionately harsh. He should also give the employee the opportunity to refute the case made against him and explain his actions before the final decision is made. This is especially important where constitutionally protected liberty and property interests are involved. It should be noted that the results of a
Illinois Parks and Recreation 32 September/October 1985 polygraph test cannot be used as evidence at a discharge hearing, and that refusal to submit to such a test is not a legitimate basis for discharge. A pretennination checklist will assure that all policies have been followed and that discharge is warranted. Once that decision is reached an exit interview can clear up any misunderstandings the employee may have about the reasons for his termination, and can help to ease hard feelings. If the employee is given severance pay, he should be asked at the exit interview to sign a release of all claims arising from his employment. Such releases are not "iron-clad" and will not always be viewed by the courts as voluntary and binding agreements. But when they are upheld, they will bar any future law suit and can save a great deal of money and aggravation. Discrimination suits are very costly and can damage employee relations. Compliance with the legal standards may take a serious investment of time, money and effort, but avoiding liability payoff in the end. And while the laws may be complex, they are based on a common motion of fairness. If fairness is the governing principle of your personnel policies, they will usually satisfy the law. ABOUT THE AUTHORS: Janet E. Goldberg is a partner with the law firm of Friedman and Koven in Chicago. Her practice is limited exclusively to representing private and public employers in labor relations and equal opportunity matters. She is also a published authoress and an active member of the Labor Relations Committee of the State Chamber of Commerce. She graduated from the University of Illinois College of Law in May, 1975. Janet Hedrick recently received her JD from the University of Chicago Law School. She joined Friedman and Koven in August as an associate attorney. Illinois Parks and Recreation 33 September/October 1985 |
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