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HEADLINE: DISCHARGE MAY BE UNFAIR, BUT IT’S STILL LEGAL

QUESTION: I made a mistake at work that cost the company about $100. I felt terrible about the error, and offered to pay the $100 out of pocket. Instead, after five years on the job, I was fired. There was no disciplinary plan, no second chance — nothing. A woman in another department made a massive billing error that cost a couple of thousand dollars, and she was placed on a performance improvement plan and is still working. Can I sue the company for treating me unfairly?

ANSWER: Probably not. Michigan, like most of the United States, allows for “at-will” employment. Unless you are protected by a union contract or other agreement, you can be fired from a job for “any reason or no reason at all.” The purpose of the doctrine is to allow employers — and workers — flexibility, the ability to shed staff (or a job) as the market requires. As a practical matter, however, the benefits from the policy accrue almost entirely to employers.

But employees are not without any protection: An adverse action, like discharge or demotion, cannot be taken against a worker if it is based on the worker’s protected characteristic, such as race, national origin, color, religion, sex, age, disability, pregnancy and (in Michigan) weight. Nor can employees be retaliated against for blowing the whistle on employer misconduct, or for taking advantage of state or federal leave policies.

If you were denied a second chance and other workers in a similar position were given one, you might have a claim of discrimination if, for example, you are Latina, or over 40, or female and all the other employees are (respectively) white, under 40, or male. Or, you might have a claim if, for instance, you were discharged for a relatively minor error after reporting your suspicion that the company was not calculating overtime correctly, or after reporting a supervisor’s harassment. Or, you might have a claim if you were fired for such actions as taking six weeks’ maternity leave under the federal Family and Medical Leave Act, or a week off for a serious illness under Michigan’s Paid Medical Leave.

But if your boss fired you because she was in a bad mood, or wanted to hire her cousin, or didn’t like the way you laugh — you would not have a legal claim against her, even though the action against you was outrageously unfair. Worse, you are not entitled to any severance pay. (Depending on the circumstances, you might still be eligible for unemployment.)

A 2022 report from the National Employment Law Project found that almost 70 percent of workers who had been discharged “received no reason or an unfair reason for the termination,” and 75 percent received no warning before they were separated from their jobs. About 12.5 percent of all workers reported being disciplined or terminated for speaking up about problems on the job, the NELP study found. The report quotes a 59-year-old worker for was fired after he complained about working “12 hours in 90-degreeheat without [a] water break [and] just a half hour lunch break.”

Often, an unfair termination is also an illegal termination, but workers lack the resources to hire an attorney, and lack information about how to protest their treatment to governmental agencies. But resources are available: legal aid clinics help those with low incomes, federal and state agencies allow complaints to be made online (the Department of Labor and the Equal Employment Opportunity Commission, for example) and, in some cases, attorneys will agree to work on a contingency basis, in which they are paid only if the client wins — and then receive a percentage of any settlement or jury award.

But fear of being fired keeps many workers on the job, even when they are treated poorly.

Although employer can terminate workers for no good reason, arbitrary and unfair treatment of employees is against an employer’s self-interest. It is likely to have a negative effect on an employer’s bottom line. Workers who feel they are viewed as expendable cogs in a machine are less likely to be engaged in their work, to work hard, and may be more likely to engage in dishonest behavior, like time theft (reporting they worked when they did not) or petty theft (using office equipment and supplies for personal needs.)

It my no be much solace to you now, but firing you without cause may cost your employer in the long run.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]
www.gwinnlegal.com