NetNews Usenet Archive 1993 #1/NN_1993_1.iso/spool/misc/activism/progress/9922

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From: Hank Roth <[e-mail]>
Subject: FIRED ON A WHIM
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{From THE WEEKLY, a Central Florida independent weekly tabloid,
January 1, 1993}

 YOU CAN BE FIRED ON A WHIM
 by Pat Copeland

You've just been fired for no apparent reason. You're shocked,
angry, confused. How could this happen? Where can you turn for
help?

If you live in Florida or one of 20 other states where the
doctrine of "at will" reigns, you may have little or no recorse.

That is because "at will" usually means an employer can fire an
employee without giving a reason.

David Linesch, a Clearwater attorney who specializes in labor
law, explains:

"The common law is that employment is "at will." Obviously, it's
at will for both parties--the employee and the employer. Either
can terminate the relationship at any time, with or without
cause.

"Some states have modified the common law and said that you can't
fire somebody if it violates a public policy," says Linesch, but
Florida is not among those states.

Linesch notes that Florida does recognize some exception to the
"at will" principal." A lot of them mirror federal exceptions.
There are certain prescribed reasons you cannot fire somebody--
for race, sex, marital status, pregnancy, disability, age, filing
a worker's comp claim, perceiving them to be affected with HIV or
AIDS, etc.

"At the same time, an employer can say, "I don't like the tie you
picked out today, and because of that I'm going to fire you. It's
very unfair, but that is no actionable (something that can be
challenged in court) in Florida."

Francisco Rivera, senior attorney for the Florida Department of
Labor, says: "I hear complaints several times a week from people
who are fired and given no reason, especially those that come
from states where the "at will" doctrine has been revoked by
statute. Sometimes they can't believe it.

"Employment `at will' is the doctrine of the State of Florida and
we have to respect it. Unless there is a change in the common
law, it would be imporper for us to hold employers to a standard
of not fireing people unless there's good cause.

"The law is the law, and we're bound to follow the law. The
legislature has the power to change it; it's up to them to act."

There seems to be little legislative support or any real chance
of that happening soon, says Central Florida lawmakers.

State Rep. Alzo Reddick says that in his 10 years in Tallahassee,
"no one has ever expressed to me a concern on this subject. None
of the pople I represent have ever brought it to my attention."

Fellow Rep. Tom Feeney, whose district covers west Orlando, says
that's just fine with him. He views Florida's strong right-to-
work laws as attractive to employers.

"Changing the law to prevent any discrimination against people,
like many ideas, sounds like a good one. But it's another
situation where it will enrich lawyers. If anybody who gets
dismissed from a job can run down to their local attorney, sue
some employer for $1 million and win, then nuisance suits wil
become common. Employers will not want to hire or fire new people
and some jobs will be lost to other states," he says.

Rich Tesch, president of Economic Development of Mid-Florida,
says the subject seldom comes up among his organization's
members, but that he thinks an important incentive for new
companies moving here is their continuing ability to hire and
fire at will.

Central Florida employers also say they like the situation as it
exists today. And although it can happen, both large and small
corporations tend not to arbitrarily fire people without cause.

"Firing is a very involved process and taken very seriously by
us," says a spokesman for the American Automobile Association,
one of Central Florida's largest employers.

"Before that happens, employees have to get a chance to be better
employees. A lot of documentation and a lot of cost is involved--
regardless of what the law says---before that (firing) happens,"
he says.

Others, such as Bob Mandell, president of the Greater
Construction Corporation -- Orlando-based homebuilding company
that employs up to 50 people -- says it is rare for them to fire
anyone.

"But I do think it's only fair, if you run a business as best you
can, that you are able to make judgements like that without
reprisals," says Mandell.

Rivera says, if a firing involves a case where there is a state
or federal statute against discrimiation -- such as sexual
harassment, safety, etc. -- his department can refer it to
another appropriate agency, such as the Equal Opportunity
Commission.

But, "If someone called and said they were fired, and it doesn't
deal with any of the areas that have been given to the
department, the department does not get involved. As long as it's
employment at will, there's nothing we can do."

Linesch represents employees exclusively, "and one of the
toughest jobs I have is explaining to people that not all unfair
action by employers is actionable. There are a lot of people that
are treated unfairly."

"You wouldn't believe some of the cases. One thing I'm seeing a
lot of lately is people who are fired right before their pension
vests or right after they come down with a serious illness.
Benefits are such a huge load of employer costs these days,
roughly 50 percent or more, that employers are cutting people
loose because they're going to charge a certain benefit account.
But that's actionable under federal law.

"Some states have imiplied a covenant of good faith and fair
dealing," said Linesch. "That is, if you've got 20 years with a
company, shouldn't there, because of that relationship and its
length, be a covenant of good faith and fair dealing?"

Linesch said, in order to address employees' rights, either
legislation would have to be passed or more exceptions would have
to be judicially recognized. "A lot of the employment at will is
not legislative, it's judicial in nature."

Linesch noted that private sector employees in the State of
Florida "don't even have the right to see their personnel file.
It's ludicrous. It (the "at will" doctrine) is archaic, and it's
a deck that's stacked against employees."

So what's your next step? You've been fired, and you have no
legal recourse. Your termination has you completely stressed.
Your blood pressure skyrockets; you can't sleep; you have chest
pains. Your doctor prescribes tranquilizers. You consder a
workman's compensation claim for psychological reasons.

"Under Florida worker's compensation law, purely psychological
damage has never been considered," points out John Fryback, a
Bradenton attorney who specializes in worker's compensation law.
"It's always been the rule in Florida that you need some sort of
physical injury or contract to make a claim for related
psychological or psychiatric damage.

"The Florida courts have always been more conservative on this
than California, for example. In California, you can make a claim
for emotional stress on the job without any sort of physical
injury. As a result, they've been flooded with stress claims of
all sorts, and the proof on that is more difficult."

Fryback pointed out that the Florida Supreme Court recently ruled
on a claim of psychological damage in the case of the City of
Holmes Beach vs. Mike Grace. In 1985, Grace then a Holmes Beach
police officer, joined a struggle with an unarmed man during
which the officer's gun discharged, killing the man. Grace
maintained that he developed post-traumatic stress from the
incident.

At issue was whether an injury caused by fright or exceitement
would be compensable -- in this case, the scuffle prior to the
shooting. The court ruled that it was not, thus denying the
officer's claim to compensation for his stress.

Melvina Harrell of the dispute resolution unit of the state
Division of Workman's Compensation notes: "Stress and strain
(alone) are not compensable under the worker's comp law.

"The injury has to be fairly prolonged and fairly prolonged and
fairly serious. For example, people who have been in manual labor
all their lives -- all of a sudden they're not able to work, and
it is devastating to them mentally. They are deprived of their
manhood. This type of problem, which is related to the worker's
comp injury, does require psychiatric care. But minor injuries
very rarely result in psychiatric care."

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