Introduction – The case of Long Term Insurance Company agency manager Max and his termination as an will employee resulting from reasons which according to Max are untrue is a case that defines some important aspects of discussion involving the state of employment, the importance of contract, the pit falls of at-will employees, the extent of the power of management for termination and grounds for such action and the presence of the use of misleading and false information to justify the grounds for termination and the legal parameters of such actions. Most people who enter into a verbal employment agreement often miss the importance of having a contract so that the employee is guaranteed of a protected tenure safeguarded by the stipulations of the contract, which often includes grounds for termination, thus making termination sans due cause an illegal action and making the employee legally empowered to pursue charges and be awarded remuneration and or compensation accordingly.
Discussion on the grounds of discrimination – Max does not have a very solid ground to stand on when it comes to his contention on discrimination present inside the Long Term Insurance Company because of several different reasons. First, there was an absence of proof that he received any threatening, insulting or maligning remarks, in words or in print, about a particular aspect of his life from which discrimination may originate (i.e. his age, possible incapacity which Max did not state or declare; religion, gender, political and social affiliations and/or educational attainment or lack of).
A second strong defense of the Long Term Insurance Company against Max’s claim on the presence of discrimination and the act of discrimination directed towards Max is the fact that Max was hired by the company and paid a very satisfactory compensation package for eight years. Here, the company immediately proved that (1) they provided Max with the opportunity to work and earn with the company in a very long period of time and in the process (2) showed the level of trust on Max and his capabilities. If Max indeed was victimized by discrimination, it should have reflected in the assessment report which Max already declared as containing nothing but positive appraisal from those who filled it out.
Max, who pointed out in the case about his and Pete’s age both of which are over 50 and hinted of age discrimination after they were replaced by a couple of 30 year old employees, cannot pull effectively the issue on age discrimination because if the age difference was indeed an indication of the interest of the company to pick younger employees, Max should have not been hired since eight years ago, Max is still a few years older compared to the 30 year old replacements, and this will not prove that the company has a particular age preference, since he was hired during his forties and their replacements were hired at age 30.
Having provided proof that the company was in no way discriminatory to Max or towards any aspect of Max’s individuality and personality which could have justified otherwise the claim of Max, Max has no proof that he experienced discrimination and was victimized by such action by the company or any of his immediate superiors and top executives. Max should not pursue going after the company for discrimination because the possible legal issue in his situation is not discrimination but other possible unfair labor practice, issues which Max believes he has solid proof on.
Absence of finality on opinion and observation – As an arbitrary observer who will lend their opinion regarding the implications of the actions of both parties, this particular case study is a very good example of the situation wherein the investigator should not fully commit their opinion because of the absence of a key component: the statement of the opposite party. Note that the information that was used to create/form the situation came from Max’s point of view alone. If max will attest to the veracity of the information he provided, he can be only held accountable or liable for the information that directly pertains to him, but information that should originate from the opposite party should be duly provided so that there is a full, unbiased and comprehensive assessment that is not jeopardized by tarnished information.
Stronger area(s) of contention – If Max is looking for an avenue which can help him establish the presence of unfair labor practice, he should stop barking at the wrong tree (discrimination) and focus instead on wrongful termination which is characterized as fraudulent because of the effort of the company to use incorrect information to justify the act of termination, in the process uncover the possible real reason for the termination of Max and lead to the arguing of a more solid and stable labor/employment case. Considering the input made by Max, there are some points where him and his legal counsel and start with. But then again, the most difficult part of this entire process is the establishment of guilt and wrong doing.
What should Max prove – What Max should do in case he wants to push for a case in his predicament is that he should seriously consult his legal counsel, or find someone who is qualified to provide legal assistance so that Max can see the extent of the chance he has and the practicality of pursuing a case that is on the ropes in the first round. Max should prove that he was unduly treated to by his superiors that allowed his superiors the convenience of terminating him. Max should also refer to the guidelines and assistance provided by agencies that cater to this kind of problem, so that Max can devote his time and effort in doing something that is substantial to his case and not focus on totally useless goals.
Barricades that will hinder Max’s advance – But despite the presence of strong contention areas for Max which he can use to push for a case of unfair labor practice, the Long Term Insurance Company still holds a very commanding upper hand because of how things fall into the right pieces considering the information available. Max was pushing for a case that will reveal the fraudulent nature of the reasons provided by the company for terminating him in the belief that the grounds of the company are false. But if the company can provide sufficiently that grounds were not fraudulent or false, Max has nothing more but a mere gut feeling, possible spurred by the feeling of indignation that most terminated employees who during their tenure at work showed exemplary skills.
First, what are these grounds? The first reason is the claim of negative attitude which Max countered by referring to the contents of his semi annual assessment and evaluation. The second reason is that the company is incurring an increase in expense that they cannot handle anymore in lieu with the decrease in sales and profit, which Max countered by pointing out that he should have not been cut out because of the excellent performance of his sales despite a very disappointing overall company performance in sales and profit. Long Term Insurance Company may provide very convenient excuses or alibis to prove that they are not acting with intent or use of fraud during the process leading to the assessment and recommendation of termination of the employment of Max.
For the first ground, the company may easily provide HR papers and documentations of incident reports and other input from other superiors and other subordinates that may indicate that Max indeed displayed a certain level of negative attitude inside the workplace. Keep in mind that the semi annual evaluation report does not automatically attach or include incident reports. Another possible avenue for the company is the fact that the company’s claim on negative attitude may pertain to more recent observations which are not yet reflected in the evaluation report.
On the second ground, a dip in sales and profit performance is not difficult to prove, and the fact that the replacement the company hired was paid with a lower compensation package compared to that of Max (in the process risking performance by hiring someone from an inferior salary package) only strengthened the position of the company that the move was geared at supporting company initiatives necessary to keep the company afloat and financially stable.
The most important barricade or hindrance for Max is the fact that they cannot justify or substantiate his claim that he was fired for writing a recommendation letter for his immediate superior Pete. Max did not have any proof that can be used as real evidence in the court of law. Moreover, the fact that Max’s recommendation letter about his immediate superior did not have any real effects on management policies for firing or terminating employees makes Max’s case for unstable, shaky and with very poor chances of winning in case it would become a full blown civil or criminal case.
The last and possibly the biggest bad news for Max is the fact that the law allows for the absence of due cause or reason for the employer to terminate an at-will employee like Max. “Most states recognize the common law presumption that, absent a contract of employment for a specified term, employment is at will. Employment at will normally can be terminated by either party, with or without cause, at any time (Lipsig, Dollarhide, Seifert, 2007, p. 28).” Sure, Max and his legal counsel may research and actually find a precedent for his case, but it will still face a very rough and patchy legal road since Max does not have a very solid evidence so far that incriminates the company and proves any unfair labor practice.
Conclusion – Max case is an important reminder about how discrimination at workplace and during the process of employment termination should be detected and be used effectively for a claim on unfair labor practice, as well as an important reminder on the dangers of at will employment, and how performance records is not enough to make someone confident and complacent at work thinking he or she is an indispensable asset. Max cannot argue that he cannot be terminated because he was a very good worker in the past; Max and every employee were all expected to work good and hard for the company, but that does not shield anyone, especially at will employees, from being terminated without due cause. As what Lipsig, Dollarhide and Seifert (2007) pointed out, “An employer, of course, is not liable for breach of contract when it terminates an at-will employee (Lipsig, et. al., 2007, p. 28).”
Lipsig, Ethan, Dollarhide, Mary C. and Seifert, Brit K. (August 2007). Reductions in Force
in: Employment Law. Bureau of National Affairs, Incorporated.