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Tuesday, March 3, 2009

Employment at Will, Company Policy & CBA

Obviously I have too much free time! And as usual my disclaimer is "I am not a lawyer blah, blah, blah.

Wrongful termination! I suspect that most folks who were ever fired first yelled "UNFAIR" and then "I'll sue for wrongful termination!" The exception might be guy who goes into the place where he used to work and blows away 17 of his ex-coworkers with an AK-47. His firing might have been unfair or perhaps even wrongful but his method of expressing his complaint leaves a lot to be desired and he should have given a lot more thought to following a different path.

We've already said that most states, including Colorado, are "at will" and under that doctrine an employee can be fired for a good reason, a bad reason or no reason at all. Ignoring all the other variables (regulations, laws, contracts, etc.) for a moment, Colorado recognizes two exceptions to at will; Public Policy and Implied Contract. My simple mind can't grasp those concepts so I'll leave the legal explanations to the readers (if I ever get any :-). My simple explanation is that a company can't fire you for being gone to serve on a jury, for example, and the company should follow it's own rules and apply those rules to everyone.

So Bubba, the rotten SOB who used to be your boss just fired you because he didn't like the way you combed your hair this morning! What do you do now? Strictly going by the definition of at will, nothing except start looking for a new job. Fortunately there are a few exceptions.

Are you a protected employee under a state/federal law or regulation (ADA, EEO, FMLA, etc.)?

What does your employee handbook/company policy say regarding termination? If your boss didn't follow the company's own rules, or treated you differently than others (said nothing when the other guy came in with a mohawk but fired you for yours), you might have a Colorado claim under the implied contract exception. You told your boss you voted for Barack and after listening to Limbaugh for a hour, he got so pissed he fired you. Look at the Public Policy exception.

Protection under an employment contract or Collective Bargaining Agreement (CBA).

Some of your choices are: do nothing except bitch & moan, possibly file a formal complaint or perhaps pay a good labor attorney for an hour of their time just in case you have an actionable claim. The choice is yours.

I specifically want to talk to ATU 1001 members regarding the CBA between the union and First Transit. The CBA ratified 1/10/2009 isn't back from the printers so I'm relying what I was told, i.e. the language of the new contract didn't change.

Under the CBA, you can only be disciplined, including termination, for "just cause" but what is "just cause"? I think we can all agree that if you come to work drunk, that would certainly be enough to get you fired. Beyond that, what do you go by?

Article 3 Paragraph B. "The right to hire, promote, discharge or discipline for just cause........
is the sole responsibility of the Company. The Company may establish, implement and enforce reasonable rules..........."

Raise your hand if you know the details of those rules!

Paragraph B goes on: "The Company will provide each employee with a copy of the Company Rules and Regulations (The handbook I suppose, want to bet it doesn't match what they have?) and will maintain a complete (what, the handbook isn't a complete copy? Isn't a copy supposed to match the original?) set of it's Rules and Regulations for review by employees"

Here's my problem (and it might be your problem some day). I first asked to see the Company Rules and Regulations back in January and have asked several times since. I don't know if I'm being intentionally ignored or if it's just an oversight. Perhaps it's just a big bother. Regardless, the company has not complied with my request. My latest request was an email I sent on Sunday and I asked for "a link to an on-line copy" or that "a copy be sent to me" or that "some one tell me where I could go to read a copy". No reply but I'll keep you informed.

My final question "Is the company trying to hide something?"

P.S. I don't think the Denver HR office is allowed to talk to me so I've only communicated with folks back in Cincinnati for the last 5 weeks or so. Was I a bad boy, Santa?

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