Posted By: Dan Crean, Crean Law Office, Pembroke, New Hampshire
Elections often bring about change – some major, some minor. The 2008 election is no exception and raises the prospect that 2009 might see enactment of federal and state legislation seeking to abolish “at-will” employment status among public sector employees, if not across both public and private sector employment. Most studies conclude that today the vast majority of states provide only limited exceptions to at-will employment. Exceptions may be based on generally applicable concepts such as state anti-discrimination laws that limit employer discretion which is tied to prohibited criteria. Other laws may require “cause” for imposition of discipline or discharge against selected occupations or positions. Most states also ban retaliation in the form of discharge or discipline for at least some employees who engage in whistleblowing.
Given the traditional labor and union backing for Democratic candidates, it is conceivable that legislative proposals barring or limiting at-will status will find greater support in upcoming legislative sessions in both Congress and State Legislatures.
In what is now generally described as a “global economy,” one might posit the notion that legislative bodies in this country will seek to join countries such as Canada, France, Germany, England, Italy, Japan, and Sweden in requiring that employers demonstrate “good cause” before terminating an employee.
Indeed, in 1991, the National Conference of Commissioners on Uniform State Laws crafted the “Model Employment Termination Act” which requires, inter alia, that any qualified employee may not have his or here employment terminated without “good cause.” The model law contains certain exceptions based on number of employees and employees must have been employed for a minimum period to come under its protections. The model act allows states to determine applicability to local governments. To this author’s knowledge, it has not been adopted by any state as of this date. For more information, go to www.nccusl.org.
Even if legislatures resist pressure to enact modifications of at-will status, secondary approaches may include actions, such as that which occurred in New Hampshire to facilitate public employee unions and collective bargaining. Though the New Hampshire General Court (its Legislature) retained the minimum required number of employees necessary to certify a bargaining unit at ten, it amended the law to allow a governing board to recognize, voluntarily, units consisting of fewer than ten employees. Given past legislative failures to reduce that threshold and the reluctance of the State Legislature to “mandate” collective bargaining, this new law seeks a back door to promoting unionization of the public workforce by raising the potential for electing governing board members based on their support for collective bargaining (and its virtually inevitable result of substituting “for cause” employment for “at-will” status).
Municipal lawyers should consider how to respond to the possibility of changing from “at-will” to “for-cause” status.