Tag Archives: Nate Ring

Guest Post: At-will employment and right to work explained

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Nevada attorney Nate Ring

Happy Labor Day week! Here’s a post from Nate Ring at The Nevada Labor Law Blog about the difference between right to work and employment at-will

In my experience, when it comes to employment and labor law, no two terms or concepts are confused more than right to work and at will employment. It seems that every week, I encounter someone who believes that (a) the terms are interchangeable or (b) one is actually the other.  This is true for friends, family, potential clients, and even other attorneys who do not practice employment law (actually, I have had some attorneys who claim to practice employment law that have also made mistake (b) above).

This post is not about my qualms with either of these legal doctrines. I am setting aside my issues with the term right to work, its utterly misleading name and the negative effects it is really intended to have on labor unions. I am also setting aside my concern with at will employment and the reality that it gives far more power to those with capital than those who provide labor. Ok, maybe I am not completely setting these aside.

I will first address right to work, its background, meaning and effects. I will then discuss at will employment, its background, meaning, and effects. I will focus on the two as set out in Nevada law.

Right to Work

At its base, right to work states an employee cannot be required to pay any dues or fees to a labor union that represents him. This is true despite the union negotiating a collective bargaining agreement on his and other employee’s behalves and providing grievance and arbitration representation to that employee and others. Right to work allows a selfish employee the ability to obtain benefits at no cost to him personally. It is in reality a freeloader or freerider law.

Right to work laws are in effect in 27 states. Nevada is one of those states. The genus of right to work laws is the Taft-Hartley Act of 1947. This law fundamentally shifted the balance in labor relations set under the 1935 Wagner Act against labor unions and in favor of employers. For purposes of this topic, it permitted states to create right to work laws. Section 14(b) of the Taft-Hartley Act made this permissible.

Right to work laws have long been supported by business interest groups and they have been successful in getting all states in the deep south and many in the Midwest to pass such laws. NRS 613.230 through 613.300 contain Nevada’s right to work law. The law took effect in 1953 and during the 1950s, Nevada voters defeated three initiatives to repeal it. According to the Nevada Legislative Counsel Bureau, the Nevada Legislature has considered and rejected at least ten measures that have sought to amend or repeal the right to work law.

What is the real purpose of a right to work law? The real purpose is quite simple, business groups want to drain labor unions of dues money by allowing freeloaders to obtain negotiated benefits without payment. Labor unions are required to provide representation but cannot charge for the tasks they perform for members of a bargaining unit. Business hope that eventually the labor union will crumble under the weight of providing services with no remuneration and the businesses will be free to run roughshod over employees.

Union density is much lower in right to work states. Wages and benefits are also lower in right to work states. More troubling is the fact that the rate of workplace injuries and immigrant labor abuses are higher in right to work states. A lot of ills befall working people because of right to work laws.

At Will Employment

At will employment is a judicially created doctrine that is not enshrined in Nevada statutes. At will employment simply states employers are free to terminate employees at any time, without notice or reason and employees are free to leave employment at any time and for any reason, also without notice. An employer cannot, however, terminate an employee for a discriminatory reason (i.e. race, sex, sexual orientation, religion) or a reason that violates Nevada public policy.

 

Nevada is not alone in being an at will employment state—nowhere near it. In fact, 49 states have at will employment. The lone exception is Montana, which requires just cause for termination of an employee following the employee’s completion of a probationary period.

In American Bank Stationery v. Farmer,106 Nev. 698, 799 P.2d 1100 (1990), the Nevada Supreme Court held at will employment is presumed and an employee can only rebut this presumption with proof of an express or implied employment contract.

In my experience, courts are loath to find exceptions to the at will employment doctrine. Employees often believe their employee handbook creates a contract—it often does not! I have seen and heard of cases in which employers have employee handbooks and policies that run into the hundreds of pages, but contain one or two disclaimers stating “Regardless of what is contained in this employee handbook, no promise of employment for a specific term is being made, and your employment is at will.” The employers have even followed the policies and procedures contained in the handbook fully except for the single act of terminating the specific employee, but courts have not found an implied contract in that employee handbook. Proving an exception to at will employment can be very difficult unless an employee has a written express contract for her own employment or the termination violated a public policy of the state.

Right to work and at will employment are very different legal doctrines that are often confused for one another. I hope this post helps to dispel some of the confusion and interchangeable use of the terms that happens daily.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Can I use the decision in my unemployment appeal in my wrongful termination case?

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Can I use the decision in my unemployment appeal in my wrongful termination case?

Attorney Nate Ring answered this question for his state on his blog, The Nevada Labor Law Blog.

In Nevada, the answer is a firm no by statute.  Nebraska law is a bit more permissive about the use of unemployment decisions in other cases. But in my experience, judges will rarely admit the decisions into evidence or give the decision much weight for the purpose of summary judgment.

I will explain why Nebraska judges usually don’t rely on unemployment decision in other cases. But even if an unemployment decision can’t be used in a wrongful termination case, an unemployment appeal can be useful in investigating a wrongful termination case.

Nebraska judges tend not to give much weight to unemployment decisions in related cases for reasons of procedure and substance. Like Nate Ring wrote, unemployment appeals have rules of evidence that allow in more evidence but allow for far less investigation than in civil court. The differences in evidentiary and procedural rules can lead to an unemployment judge deciding a case about the same termination on a different set of facts.

Secondly, in an unemployment appeal the employer has the burden of proof to show the employee committed misconduct in connection with their employment. In a wrongful termination case, the employee has the burden to show their termination was motivated by  an unlawful reason. In short, it is easier for an employee to win an unemployment appeal. As a result, judges are very reluctant to let an unemployment decision into the records.

But even though an employee generally can’t use an unemployment appeal decision in a wrongful termination case, an unemployment appeal can be helpful in prosecuting a wrongful termination case.

Unemployment appeals are useful in investigating the facts of a termination, For most employees, non-union and private sector employees, it is difficult to obtain an employment file. In a Nebraska unemployment appeal, an employee can subpoena records relevant to their termination.

The employee, or their attorney, also has the opportunity to question employer witnesses who likely would have been involved in the decision to terminate the employee. In Nebraska this questioning is done under oath.

To sum up, an unemployment hearing can be a way for employee to find out additional facts about their termination and get admissions and impeachment evidence in a wrongful termination case..

Sometimes an unemployment appeal can be a chance for an employer to show they can fully justify their termination. If an employer can provide credible documentation of repeated misconduct or performance problems, an employer is likely to be able to defeat an unemployment claim.

This documentation of misconduct or performance problems is often part of so-called progressive discipline. While progressive discipline isn’t required to fire an employee and failure to use progressive discipline generally isn’t evidence of discrimination, progressive discipline is often necessary in an unemployment hearing. If employers don’t follow progressive discipline, they risk having their unemployment taxes increased.

I’ve written previously about the vast powers that employers have to fire employees in the United States. Employers can fire employees at any time for reason. This is known as ‘at-will employment.” The law around unemployment insurance can serve to modify employment at-will by giving a tax penalty to employers who don’t follow progressive discipline in firing employees. So while unemloyment insurnace is thought of a social safety net program, it effectively functions as a civil rights law as it discourages employers from firing employees without some due process.

 

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Nebraska, Unemployment and tagged , .