Our company fired us last week. The stated reason: reorganization and “employment at will.”
It was far more than that.
We feared for our safety and that of our coworkers. We told our employer that they were violating state COVID-19 protocols. Within two days, both of us were told that our department had reorganized, and we weren’t needed as employees.
When we asked questions, our manager appeared to read from a script, saying, “employment at will is the default in our state and we can remove any employee for any or no reason.
What options do we have?
You may have a retaliation complaint as whistleblowers. If you visit Office of Safety and Health Administration (OSHA)’s website, osha.gov/workers/file-complaint, it walks you through the steps to file a complaint.
You can sue for wrongful termination.
Although employment at will is the default rule in forty-nine of fifty U.S. states (all except Montana), employees can sue for wrongful discharge if an employer violates public policy.
Public policy most often presents itself when an employer discriminates against an employee for reasons such as the employee’s age, sex, race, religion, disability, pregnancy, or another protected category. Then, when the employer uses a reason such as “reorganization,” the employee can sue, alleging the reason was phony or a pretext.
An open question exists whether or not your voiced concerns have public policy protection. This situation presented itself recently when healthcare employees in Pennsylvania protested their employer wasn’t following state and local COVID-19 protocols. While the employer attempted, I learned through Eric Meyer’s Employer Handbook”1 that a Pennsylvania federal judge concluded the “current global pandemic poses a serious public health concern, and combined with potential violations of medical ethical rules and practice protocols, is sufficient to allege a wrong discharge claim.”
More research revealed a January 2021 decision in which a federal judge found the Pennsylvania governor’s COVID-19 related executive orders didn’t constitute public policy and thus firing an employee for reporting violations of those orders is not wrongful.
You can find out more about this in Warner v. United Natural Foods, Inc.2 In that case, the employee alleged after he reported his employer to the Department of Health for not adequately adhering to the governor’s COVID-19 orders, his employer fired him.
Since state whistleblower protection laws vary, you may want to check with a local employment attorney.
Meanwhile, I’ve worked in employment situations long enough to know that sometimes a business organization IS the reason an employer terminates employees. If you seek an attorney’s advice, remember your employer may be able to justify their need to reorganize, eliminating your positions.
© 2020, Lynne Curry
Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at https://workplacecoachblog.com/ask-a-coach/ or follow her on twitter @lynnecurry10. www.workplacecoachblog.com.
Subscribing to the blog is easy
If you’d like to get 3 to 5 posts a week delivered to your inbox (and NO spam), just add your email address below. (I’ll never sell it.) I’m glad you’ve joined this vibrant blog. Thank you!