"Silence is one of the hardest arguments to refute."
-Josh Billings
WORKPLACE VIOLENCE BY EX EMPLOYEES:
IS AT-WILL AT-FAULT?
Alarming Statistics:
Is employment at-will the center of work related crimes?
According to the National
Institute for Occupational Safety and Health, about 1,000 people are
murdered at work every year. The latest studies now indicate that about two of
these murder victims per month have supervised the employee who murdered them.
The U.S.
Justice Department, expands on those statistics indicating, 20 workers are
killed nationwide and 18,000 assaulted in workplace violence each week
Economic and social factors may
be contributing to a more violent workplace; for example, the sudden loss of
employment due to the at-will doctrine, can leave people not only without jobs
for the first time in their lives, but also very angry. Individuals who witness
a devoted employee being released for no apparent reason become apprehensive
about their own future. This insecurity breeds distrust of management and
creates a more stressful work environment, especially when the employees have
witnessed another employee being harassed by a supervisor in the supervisor's
attempt to give that employee a constructive discharge. Studies have found that
highly stressed employees experience twice the rate of violence and harassment
than employees in less stressful environments.
Workplace violence has gotten
out of hand, but what has allowed the process to deteriorate to this state?
"Stories about horrific workplace murders and assaults have
become common in the media. But far less frequently reported are the
day-to-day bullying and intimidation many employees experience from
bosses as well as co-workers—experiences that can not only undermine
morale and productivity, but, psychologists say, also lead to the worst
kind of workplace violence."
"There are no statistics on the extent of workplace bullying,
but Braverman says the behavior is 'endemic' in some
organizations."
" Bullying and intimidation can’t happen unless there is a
climate that allows it,' he says. And that climate discourages employees
from reporting potentially violent behavior that may be 'early warning
signs' of individual breakdown and severe workplace stress. "
"NIOSH says an average of 20 U.S. workers are murdered and 18,000
assaulted each week at work—and these figures don’t include
bullying, threats and other forms of verbal, physical and sexual
harassment.""
Employment At Will
One area in which to look for answers to the questions of workplace violence,
is the outdated, employment at-will doctrine; upheld by lawmakers throughout the
country who refuse to enact laws to rectify this problem and upheld by the
judicial system that time and time again strikes down employees legal fight for
freedom from the at-will oppression.
There are
many theories concerning the inception of the at-will
doctrine. Some feel that the doctrine
of at-will employment first appeared as a statement in a legal treatise by
Horace G. Wood, Master and Servant, (pages 272-273) written in
1877. (Reprints
now available.) After having secured a copy of Master and Servant,
I tend to lean towards the thesis that Wood
made-up the concept of at-will employment, wrongly describing it as already
having been accepted by the courts.
Soon after Wood's treatise
appeared, various courts began citing the rule in his treatise; in the case of
McCullough Iron Co. v. Carpenter, (MD 1887) the court stated: ([Wood's treatise]
is an American authority of high repute ...."); thus the rule within a
matter of years, became accepted as law.
Others, however, feel it was not
until the case of Adair
v The United States (1908) when the court found: "While the rights
of liberty and property guaranteed by the Constitution against deprivation
without due process of law, are subject to such reasonable restrictions as the
common good or general welfare may require, it is not within the functions of
government -- at least in the absence of contract -- to compel any person in the
course of his business, and against his will, either to employ, or be employed
by, another. An employer has the same right to prescribe terms on which he will
employ one to labor as an employee has to prescribe those on which he will sell
his labor, and any legislation which disturbs this equality is an arbitrary and
unjustifiable interference with liberty of contract,” that the employment
at-will doctrine took full force."
No matter what the cause, the
employment at-will doctrine has haunted American employees for far too long.
The "employment at
will" rule in virtually every state within the nation is simply this:
an employer may dismiss an employee who was hired for an indefinite period, at
any time for any reason or no reason, without incurring any liability to the
employee. Over the year’s statutes, laws and judicial hearings have eroded
the doctrine, but not enough to totally protect all American Employees; in fact
there are only the three groups protected against the at-will doctrine, State
Employees, Federal Employees and Union Members.
Exceptions
Both statutes and court decisions
have made recognized exceptions to this rule. Federal and state laws protect
particular groups of people from arbitrary dismissal or expressly prohibit
discharge for particular reasons; such as discharge of an employee because the employee
is disabled. There are also Federal and state laws that protect
various classes of employees from termination due to race, sex, age,
national origin and other factors. Courts have also recognized two basic
exceptions to the employment at will rule:
1. Public
Policy Exception: An employer may not terminate an employee at will if the
termination would violate public policy (this exception is not applied in
New York, Maine, Florida, Alabama, Georgia, Nebraska or Rhode Island).
This means that employers are not allowed to discharge an employee for a reason
that society should not allow, such as: termination for filing a workers’
compensation claim, refusal to violate the law, reporting a violation of the law
(whistle-blowing), or filing a complaint against the employer. In other words;
in the states listed above, it is legal for your employer to terminate you for
refusing to Break The Law on their behalf.
2. Implied
Contract Exception: An employer may not terminate an employee at will where
there is an implied contract between the employer and employee. (This
exception is not valid in Florida, Delaware, Georgia, Indiana, Louisiana,
Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island,
Texas, or Virginia.) Contractual obligations are found in an
employer's oral or written assurances that employees would only be discharged
for cause; this includes outlined guidelines for dismissal in handbooks,
offering the employee a progressive discipline procedure. Implied contracts can
also include oral promises of job security. Even in the states that do recognize
implied contracts, courts have found
against the employee.
3. Implied
Covenant of Good Faith and Fair Dealing Exception: This requires parties to
a contract to be fair to one another and not to act in bad faith, it typically
applies to cases where an employee has been working for the company for many
years or where the person is fired just before he or she is due to receive
anticipated financial benefits. (This exception is only applied in the
following states: Wyoming, Utah, Nevada, Montana, Massachusetts, Idaho,
Delaware, California, Alabama, Alaska and Arizona.) The courts within
the eleven states that do recognize this exception seem to feel that employers
should conduct themselves fairly and in good faith when dealing with employees.
4. Wrongful
Discharge Exception: The National Conference of Commissioners
on Uniform State Laws published a uniform
employment termination act in 1992. This model act provides that employees
can be fired only for "good cause," has not yet been passed by any
state. Currently, the only state, which has a comprehensive wrongful
discharge statute, is Montana. However, some state courts have found
that a constructive discharge (when an employer causes or allows an employee’s
working conditions to become so intolerable that the employee has no choice but
to resign) constitutes a wrongful discharge. (Montana ranks 44 for population
estimates in the United States.)
The question that needs to be
asked is simple:
Is the refusal of American lawmakers to effectively deal with
the employment at-will doctrine and constructive discharge issue breathing life
into workplace violence and breeding murderous intent?
ROYAL OAK POSTAL WORKERS SEEK PROBE
From: The
Detroit News, November 15, 2001: "On Nov. 14, 1991, Thomas
McIlvane, a fired postal worker, slipped into the post office and fatally
shot four people and wounded four others before turning his .22-caliber rifle on
himself."
"Three of the four killed
were managers; the fourth was a management trainee."
VICTIMS: WISE HAD TARGETS Phelon workers say suspect sought those he blamed for his dismissal.
From: Augusta
Chronicle, September 17, 1997: "Accused gunman Arthur Hastings
Wise had an agenda Monday when he walked into R.E. Phelon Co. and opened fire,
according to several plant employees."
"He had some targets because
he was on Mr. Griffeth and he was the one doing the firing and hiring. He had
final say,'' Mr. Swancey said."
Mr. Griffeth, the company's human
resources director, was the first person killed.
RECENT WORKPLACE SHOOTINGS: VIOLENCE ON THE JOB
From: afgen.com,
December 18, 1997: Arturo Reyes Torres, 43, walks into a maintenance yard in
Orange, California with an AK-47 and kills his former boss and three others.
Torres, who blamed the supervisor for getting him fired, is later shot by
police.
GUNMAN KILLS 7 IN HONOLULU OFFICE
Report from: The
Edmonton Sun, November 3, 1999: "Police believe Byran Uyesugi,
a 15-year Xerox employee, shot seven fellow copier technicians at about 8 a.m.
(11 a.m. MST) after learning that he was about to be dismissed by Xerox."
WORKPLACE MURDERERS RARELY ‘JUST SNAP,’ PSYCHOLOGISTS SAY
From: Honolulu
Advertiser, November 14, 1999: "Typically, workplace shooters
blame supervisors or co-workers for some slight, and fantasize about killing
them, Fox said. Their plans often change during the shooting because of timing
and circumstances. “Sometimes they just want to kill the company,” he
said."
Here, the reader can be the judge, jury and executioner. If
you believe that the employment at-will doctrine is even remotely to blame for
the increase in workplace violence, then it is up to you to help stop the spread
of violence. Contact your assemblymen, legislators and congressmen, tell
them of your dissatisfaction in regards to their lack of response in regards to
this topic. Spread the word; tell your friends and family about the
at-will doctrine, explain how it may contribute to their lack of protection in
the workplace and have them contact their elected officials too. Make this an
issue that won't go away until it is FIXED.
