Page 65 - An Indispensible Resource for Being a Credible Activist

CHAPTER 4

LEGAL ISSUES FOR CREDIBLE ACTIVISTS

This chapter includes legal noncompliance issues the American employer has a responsibility
to prevent and the employee has every right to raise until noncompliance is eliminated. The
HR professional has an ethical and professional responsibility to raise these as well once he or
she becomes aware of them; the HR professional is also an employee and thus has all employee
rights. Brief and clear explanations, sample memos, and risk assessments for raising these
issues will be provided to the HR professional for various situations and violations. Information
on governmental agencies from which to seek recourse and information will also be provided.

EMPLOYMENT AT-WILL

Employment at-will means that the employer and the employee are free to terminate the
employment relationship at any time for any reason unless there is an employment contract
with other terms in it. While the law differs in every state, there are three major exceptions
to employment at-will that you may encounter, depending upon your region:

● The prevention of terminations for reasons that violate a state’s public policy.
● The prohibition of terminations after an implied contract for employment has been
established; such a contract can be created through employer representations of con-
tinued employment, in the form of either verbal assurances or expectations created by
employer handbooks, policies, or other written assurances.
● The prevention of terminations when there is an implied covenant of good faith and
fair dealing in the employment relationship.

In some states, none of these are in effect. You’ll want to look up your state in the HR
Tool “Recognition of Employment-at-Will Exceptions, by State, as of October 1, 2000,” at the
end of the chapter, on pages 58–59. As a result of employment-at-will and the exceptions to
it, most employee handbooks will explicitly state that the handbook is not an employment
contract and that employment is at-will. Handbooks that do not explicitly state this can be
argued as evidence that an employment contract existed when it actually was not meant to
have existed.

ADDRESSING EEO COMPLIANCE ISSUES

HR professionals are sometimes present for discussions about decisions concerning employ-
ment or continued employment of someone, which include comments that show that someone
with the authority to hire or fire or make recommendations around hiring or firing someone is

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