HR InTouch
President’s Message
On behalf of the Board of Directors,
I wish you and your family a
happy holiday season and
a healthy, prosperous New Year!
Belinda Weber, GMA SHRM President
Legal Updates
How Good Is Your HR Vocabulary?
By David R. Friedman, Friedman Law Firm
It’s time for a quiz. Do you know the meaning of the following words and phrases as used in the HR profession?
1) employment at will
2) wrongful discharge
3) layoff
4) just cause
5) probationary period
6) constructive discharge
These words and phrases have acquired their own special meaning (also known as terms of art) in the employment arena. It is important to understand and use these words and phrases correctly.
Employment at Will. Wisconsin interprets the “employment at will” doctrine to mean that an employer is allowed to discharge an employee for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.
As the Wisconsin Supreme Court stated in Bammert v. Don’s Supervalu, Inc., 2002 WI 85, 254 Wis.2d 347, 646 N.W.2d 365, “The employment-at-will doctrine is a ‘stable fixture’ of our common law, and has been since 1871. It is central to the free market economy and ‘serves the interests of employees as well as employers’ by maximizing the freedom of both. The ‘antidote’ to the potential for unfairness in employment-at-will ‘is an employment contract.’”
There are three common ways to contract with an employee. One is to contract directly with the employee, i.e., the individual employment contract. A second way is to have a handbook or other employer policy that provides some form of job security that modifies or abrogates the employment at will doctrine. And finally a collective bargaining agreement usually provides a form of job security.
Generally, at-will employees cannot pursue legal claims stemming from routine dissatisfactions with the terms and conditions of employment or an employer's unjustified decision to terminate the employment relationship. The courts generally will not second guess employment or business decisions, even when those decisions appear ill-advised or unfortunate.
However, there are various statutory exceptions to the employment-at-will doctrine. For instance, Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act each prohibit employers from discharging an employee on the basis of race, color, religion, sex, or national origin. Other statutes make it unlawful for employers to terminate workers because of participation in union activities, jury service, military service, or testifying at an occupational, safety, and health proceeding.
Wrongful Discharge. It seems that every employee who is fired wants to claim a wrongful discharge. However, it is not the easy for an employee to sustain such a claim. To win a wrongful discharge claim, the employee must satisfy a two-part test: (1) the employee must identify a fundamental and well-defined public policy sufficient to meet the narrow cause of action for wrongful discharge under the public policy exception to the employment-at-will doctrine; and (2) the employee must demonstrate that the discharge violates that fundamental and well-defined public policy.
It is not the purpose of this article to go through the law that has developed with regard to the public policy exceptions to the employment at will doctrine. Suffice it to say that the run of the mill termination is not a wrongful discharge.
Layoff. In 1979 the Wisconsin Supreme Court stated that “a layoff from employment has a different concept in employment relations and implies a temporary separation from employment rather than a permanent termination of employment.” The exact definition of a layoff is normally defined by the terms of a collective bargaining agreement or employer policy. The main feature of a layoff is the right to be recalled to a job. Some employers, who operate under the at will concept, will layoff an employee instead of firing the employee believing this is a more compassionate approach. This approach gives the employee the ability to argue that the employer has abandoned the employee at will concept.
Just Cause. In a Wisconsin court case, a private sector non-unionized employer entered into an employment contract with an employee, and the contract contained a provision that the contract could only be terminated for just cause. After the company fired the employee, the employee sued claiming there was not just cause for the firing. The employment contract did not define what was meant by the term “just cause.” The corporation contended that "just cause" meant "inexcusable neglect." The employee presented evidence that "just cause" meant "intentional wrongdoing." As the Supreme Court said in letting the jury determine the phrase’s meaning, “the definitions are different from each other, thereby giving lie to the notion that ‘just cause’ has a single ‘plain and ordinary’ meaning.”
The lesson for an employer is twofold. First, do not assume the employer and employee have the same understanding of the meaning of the phrase “just cause.” Second, the employer should attempt to define “just cause” if it is going to use the phrase in an individual employment contract or board policy. (There is no real difference between the words just cause, reasonable cause or cause.)
In unionized settings the phrase “just cause” will be interpreted by arbitrators using the common law that has developed for the particular industry.
Probationary Period. A probationary period is an amount of time that allows the employer to discharge the employee without having to meet the ultimate discharge standard (which typically is a cause standard). Inherent in the at will concept is that there is no cause standard. Therefore, it can be argued employees are always on “probation.” For those employers who add a probationary period where it is not necessary, it can be implied that there must be a higher standard at the end of the probationary period.
Constructive Discharge. The doctrine of constructive discharge recognizes that some resignations are coerced, tantamount to a termination. In an attempt to avoid liability, an employer may refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit. The doctrine of constructive discharge addresses such employer-attempted "end runs" around wrongful discharge and other claims requiring employer-initiated terminations of employment. Constructive discharge exposes "what is ostensibly a resignation [as] a discharge." The doctrine operates "to discard form for substance, to reject sham for reality" and recognizes that certain resignations are, in fact, actual firings.
As the Wisconsin Supreme Court said in Strozinsky v. School District of Brown Deer, 2000 WI 97, 237 Wis.2d 19, 614 N.W.2d 443, “We therefore must discern what conditions rise to this level of intolerability. A constructive discharge analysis implicates an objective inquiry, recognizing that employees cannot be overly sensitive to a working environment. The question hinges on whether a reasonable person in the position of the plaintiff would feel forced to quit. Stressful ‘disappointments, and possibly some injustices’ are not actionable. Similarly, employees will not prevail in claims charging only that managers were heavy-handed, critical, or unpleasant. Inferior work assignments, transfers to less favorable job duties, and substandard performance reviews alone generally do not create intolerable conditions. Rather, the situation must be unusually aggravating and surpass ‘[s]ingle, trivial, or isolated’ incidents of misconduct.”
So, how did you score on this vocabulary quiz? Whether you passed with flying colors or learned a few things, hopefully you’re ready for the next time you’re tested in the real world – either in court, with an administrative agency, or in the HR issues that you solve on a daily basis.
The opinions expressed or implied are those of the author and may not represent the official position of GMASHRM. This article is intended for general information purposes and highlights developments in the legal area. This article does not constitute legal advice. The reader should consult legal counsel to determine how this information applies to any specific situation.
Total Rewards
Talent Management
From the National SHRM Bulletin Board…
Topic: Bereavement Leave
Posted: 12/15/2005 9:29:52 PM
Post: Is it fair to penalize an employee on their Annual Review or Bonus Evaluation due to taking Bereavement Leave; consequently losing 3 days of work performance? Bereavement leave was taken for the death of a brother [and] after permission was granted. There is a Bereavement policy and the employee was paid for the 3 missed days. Manager evaluated Employee for bonus evaluation. Points were not deducted per policy under the Attendance section; but points were deducted under the performance section. The reason given for the deduction of points in the performance section of the review was that targeted numbers were not met because of the days that were missed during the Bereavement Leave.
Number of Replies: 6 by 12/19/2005 9:06:36 AM
Posted Reply 1: In this case, we would describe the missed target in the evaluation form, but the supervisor would mention the bereavement leave as a compounding factor, so as NOT to reduce the bonus for this reason.
Posted Reply 2: I think you might have a problem if this person was on approved bereavement leave and then is penalized for being out. I would note it in the review as well but not penalize for it, listing the reason why.
Technology in HR
Learning and Development
Recruitment and Selection
Website of the Month: Letters of Recommendation
Do managers and supervisors always ask you for help with recommendation letters? Do you struggle with writing them yourself? If so, click here for some sample letters at the about.com website. Scroll down to the bottom of the page for letters targeted in an employment setting. Also, be sure to read the instructions on how to download the letters because a simple “double-click” will not open most of them. There are sample letters for various scenarios such as a layoff or for an average, above average, or superior employee. The language may not be an exact fit to your organization’s culture, but it’s a good starting point. The site is also a little difficult to navigate with pop-up ads and with some links not leading to the letter you may be looking for, but a quick visit may become a time-saving tool.
SHRM News / Announcements
Welcome 2006 Corporate Partners!
Please join your GMA SHRM chapter in welcoming our new and renewing Corporate Partners for 2006. The support of these partners allows the chapter to arrange quality speakers at monthly meetings, provide career-building resources for HR professionals, and organize other HR-related activities.
There are several ways for members to get to know our Corporate Partners. The chapter lists the names of Corporate Partners in each monthly newsletter and on the GMA SHRM website. In addition, partners are introduced at monthly meetings, and every partner has a special ribbon attached to his or her nametag at the meetings. The chapter also displays a banner with all of the Corporate Partner names at the monthly meetings. Members can also look for some partners to display materials at meetings or give a short introduction of their services.
So, whether in your daily interactions or as part of attending a program meeting, please take a moment this year to introduce yourself to our partners and thank them for their support. They are a vital part of the ongoing success of our chapter.
Welcome New Members!
GMA SHRM welcomes the following members who joined our chapter in November.
Steve Anderson / Educational Seminar Director / KLAAS FinancialTad Cromley / Owner / Express Personnel Services
Nicole Frank, PHR / Human Resources Specialist / FABCO Equipment, Inc
Peter Gantner / Compensation Administrator / Winterthur North America
Marjorie Lisi / Financial Advisor / New York Life Insurance Company
Jenny Medeke, PHR / Recruiter / TDS
Diana Mehler / UW Medical Foundation
Stephanie Shefcik / HR Receptionist / UW Medical Foundation
Radha Sijapati / Marketing Specialist / American Family Insurance Company
Kristine Wolter / HR Specialist / American Superconductor
Best HR Resolutions for 2006
By Martha Finney
I realize that New Year’s resolutions are about as popular as puns – both provoke the same brand of groansmanship among those who like to think they’re beyond such antics. I, for one, like resolutions so much, I make the exact same ones every year. There’s a kind of comforting familiarity to addressing the same problems.
The same problems seem to haunt the HR community as well. For the last two decades, the list of things that need to change never changes: a certain dearth of respect from the organization at large; frustration that leadership doesn’t want to walk its talk; exasperation at how the employees seem to be “calling it in.” Absolute rage at the ever growing amount of administrivia and accountabilities that really should be someone else’s problem. The chronic anxieties that come from a general agreement that HR in its current iteration is an endangered species, with no clear idea what general shape it’s evolving toward.
Okay. So, with the birth of a new year, we have a fresh set of opportunities for greatness. How are we going to take advantage of them? Here is my proposed list of resolutions designed specifically for HR. They may or may not obliterate the chronic bugaboos that have plagued HR for years. But follow these resolutions and you’ll certainly have a more rewarding and fulfilling 2006.
I will assume the role of CPO. Not Chief People Officer. For the year 2006, your assignment is to become Chief Passion Officer. That title is available to you no matter where you are in the HR organization. All you have to do is achieve the competency of understanding how your company’s mission-critical objectives intersect with individual employees’ personal sense of meaning, fulfillment and drive. High-quality employees want to know that their efforts are doing more than just pulling in a paycheck. They want to know that what they’re doing is helping to make the world a better place. Be the one to connect those dots for them.
I will sell what people want to buy how they want to buy it. Some people traffic in passion. Others prefer a different commodity: statistics, P&L, demographics, probabilities, stock prices, the numbers stuff. Okay. So give it to them that way, in just the form that will make them reach out to embrace it. You’re still about passion. And that will be our little secret.