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Prompt: The following 6 cases (A-F) below, and answer questions (I) and (II) about each case you chose, clearly and thoroughly. Do not use any outside information or online information but only the information from the handout below the cases (“Legal and Illegal Firings”) to make your argument about each case. (Even if the case really occurred, and I have made a factual error in my account of it, still use only the information provided here about the case, as if this rendering of it is 100% true.). Choose, one of the following theories, universal rules, Utilitarian, rights or virtue.

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(I) is the case as described a legal firing in California? If it is, defend it; if it is not, what detail (either explicitly in the case or implied by the case) would show it is an illegal firing? Explain. (You may “unearth” a detail that would make the firing illegal, but the detail must be consistent with the case.)

(II) is the case described an ethical firing (in any state)? Apply any 1 of the 4 ethical theories we have: utilitarian theory (the greater good), universal principles of right and wrong, human rights, or virtue theory (personal character). Justify your conclusion. You must use each one of the 4 ethical theories in this essay at least once. So, you can use utilitarian theory for 2 of the 5 cases you are analyzing, but then you must use universal rules, human rights, and virtue ethics for the other 3.

Case (A): Ron loved music and was lucky enough to get a job at a record company. It was an entry level job, but he did get perks: He could meet with singers and groups and have lunch with them when available. To promote the company’s artists, those in charge of promotions would get hundreds of CDs to give to radio stations or other venues to promote the new album or band. Ron noticed his supervisor, Dan, was always taking 100s of CDs but he (Ron) never saw Dan give them to any outlets that would air the music. He soon found out why. It turned out Dan was making extra money by selling the promotional copies to record stores in town (to be sold, brand new). Ron didn’t know what to do. He did not want to report his supervisor Dan, but he eventually decided this was illegal and if he failed to report it, he would be viewed as an accomplice. So, Ron mentioned to Dan’s supervisor, Steve, what was occurring. The practice was deemed by Steve to be highly improper. Dan, Ron’s supervisor, was fired. But then, after thanking Ron for bringing the matter to his (Steve’s) attention, Ron was also fired. It was explained to Ron that though he did the right thing, he had rendered himself unemployable at this company. With his demonstrated lack of loyalty to his supervisor, no other supervisor would want to work with him. “Nobody likes a snitch.” Was Ron legally fired? Was he ethically fired?

Case (B): Cristi Degrass, age 22, was just hired high school Spanish teacher at a public high school in Irvine. During the spring semester, some juniors discovered online that she was Playboy’s Co-Ed of the Year the previous year, her senior year in college. Online, Cristi is pictured nude in photos and videos, and she simulates lesbian sex with another co-ed. In a behind-the-scenes conversation in one of the online videos, Cristi says, “I’m gonna be a Spanish teacher. If you teach at a high school level, you have to, like, major in the area that you are teaching.” The high school decided to invoke its at-will employment right and terminated Cristi. Was this a legal firing in California? Was this an ethical firing?

Case (C): Gregory Salcido is a high school history teacher and a member of the Pico Rivera City council in southern California. In 2018 one of his students (who was wearing a Marine sweatshirt whose older brother is a Marine) filmed him on his cell phone and released the footage on the internet. Salcido could be heard (and seen) saying to his students: “The military are not high-level bankers, they are not academic people, they are not intellectual people. They are the lowest of the low.” And: “I don’t understand why we let the military guys come over here and recruit you at school. We don’t let pimps come in the school.” He also told the student who was wearing the Marine Corps sweatshirt to not join the military. The El Rancho Unified School District released a statement a few weeks after the video went viral: “Our classrooms are not the appropriate place for one-sided discussions that undermine the values our families hold dear.” Salcido was terminated by the district and could not return to El Rancho High. Was this firing legal in California? Was it ethical?

Case (D): Gustavo is the manager of a Target in Irvine. He notices his grocery department manager, Jake, on Sunday (a day he was not scheduled to work), walking his dog in a public park and wearing a white supremacist tee shirt and an anti-immigrant cap, which read, respectively: “The U.S. Was Founded by Whites not Blacks or Hispanics” and “Illegals Get No Legal Rights.” Gustavo notified upper management and Target invoked their at-will employment right and gave Jake notice of termination. Was this a legal firing in California? An ethical one?

Case (E): Tim owns a Hooters restaurant. One of his servers, Gina, has been with them 2 years (she was hired when she was 18). She has recently undergone a breast reduction surgery. Subsequently, her tips have declined and she is not as in-demand as the other female servers anymore, who all have larger breasts now. Gina did not tell Hooters about the operation beforehand, nor did she tell the company why she elected to have it. Management decides it is better for business to let her go, so they invoke their at-will employer rights and fire her. Was this a legal firing in California? An ethical one?

Case (F): Isabelle works in an office building where smoking is not permitted, so she can only smoke on her breaks and has to leave the building to do so. Most of her fellow workers congregate around the back door to smoke their cigarettes, but Isabelle prefers to sit in her car and listen to music on the radio during her 15 minute breaks. One day, as she had done dozens of times before, Isabelle was sitting in her car smoking a cigarette during a proper break. This time, however, the owner of the business happened to look out his window and saw Isabelle smoking in her car. For an unknown reason, he decides to fire her the moment she returned from her break. Is this a legal termination in CA? An ethical one?

Legal and Illegal Firings

(from The Employer’s Legal Handbook, by Attorney Fred Steingold, 2013)

In 1884 the Tennessee Supreme Court ruled that an employer can “discharge or retain employees at will for good cause, no cause, or even for cause morally wrong, without thereby being guilty of legal wrong” as long as the firing does not violate legal contractual agreements made by the parties involved. This is the doctrine of employment at will. It is supposed to give the company the same right as every individual employee, who can quit for any reason whatsoever, no reason, or a morally reprehensible reason (e.g. my boss is a redhead and I hate redhead, so I legally quit for that reason). However, beginning in 1964 with Title VII of the Civil Rights Act, firings (as well as hirings, demotions, and promotions) became illegal if they were due to an employee’s race, religion, ethnicity, or national origin. Many additional restrictions on firings have been added depending on what state you live in. For instance, in about 20 states today, you cannot be fired for your sexual orientation or gender identity. Another example: In 1990 Congress passed the Americans with Disabilities Act which does apply to all states. It prohibits discrimination against a qualified employee with a disability (physical or mental) who can perform the job, with or without reasonable accommodation.

California extends more employment protection rights to employees than perhaps any other state today. In California (but not in most other states), you are a “protected” employee and cannot be fired for different reasons, including: Pregnancy, a medical condition, marital status, age (if you are over 40), military service or anticipated deployment with the Reserves or National Guard, bankruptcy, genetic information, citizenship status (provided you are a permanent resident, temporary resident, or have worker status), serving on a jury, voting, trying to form a union, filing a workers compensation claim, taking leave under the Family Medical Leave Act. In California, it counts as discrimination (against a man) if you fire any male who is simply accused of sexual harassment without conducting an investigation. In California, you cannot be fired for reporting a safety violation to a regulatory agency. You also cannot be fired in the state of California for disclosing the amount of your wages to anyone; for complaining about workplace safety issues or reporting such issues to a government agency; for complaining if you have not been paid; or for complaining about or reporting unlawful discrimination or harassment. For all situations, to win a court case you need credible evidence that you were fired for an illegal reason. (For instance: Can you show you were fired because you reported something unseemly to HR? What would that take?) You cannot be fired in California for having AIDS or HIV, or for your political affiliations. It is also illegal to fire an employee in California for refusing to commit illegal acts or for refusing to commit fraudulent business practices (e.g. refusing to file a phony report with a state environmental agency, refusing to bribe public officials, refusing to commit perjury, or refusing to spy).

There are further reasons an employee might be “protected” from being fired in California. An employer cannot legally fire an employee if the employer made a promise of security to a job applicant. Employment contracts, employee handbooks, job descriptions, advertisements as well as job postings, interviews, and office communications, have been taken by courts as implied contracts of employment (if they imply continued employment for satisfactory work). Years of solid performance reviews may be taken by courts as evidence of a promise of future employment, though a poor performance review or customer complaints, etc. would weigh against such a claim as well.

Employers are simply being smart today if they only fire someone for a solid business reason (e.g. documented poor performance reviews; documented customer or supervisor complaints, documented violations of company policy, etc.).

Many employers today attempt to retain their at-will firing rights by including in the application forms, employee handbooks, and offers of employment that the job is “at will” and the employer can be discharged for any reason at any time, and by having the employee acknowledge the “at-will” status of the job in writing. But even this approach (which is generally solid) has been limited by courts if the employee falls under a protected class and can show they are being fired for that reason.

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EXAMPLE: Betty, a diligent worker at AutoTec, is offered a job by a rival employer. She declines the job after AutoTec’s president tells her she’ll have a job for life at AutoTec if she continues to effectively manage her workload. Three years later, AutoTec fires Betty, even though she has kept up with her work. Betty sues for wrongful discharge, claiming AutoTec violated its employment contract with her by firing her. Betty wins.

Betty would need evidence the promise was made (a witness or an email, for instance) to win her wrongful termination case. Judges could treat the employee handbook as an implied contract if there is language in it which implies job security. Then the employee would be entitled to job security if he/she is performing well at work. Specific promises of job security–written or oral–are not always necessary for a judge to rule that an employee cannot be fired arbitrarily. Judges have allowed employees to collect damages or to be reinstated if the employer created a legitimate expectation that the employee wouldn’t be fired without good cause.

EXAMPLE: After six months on the job, Tom is fired from Syspro, a small software house. He sues for wrongful discharge, claiming that Syspro fired him without a good reason even though its employee handbook led him to believe that he’d only be fired for good cause. The judge agrees. The court rules that the employer’s wording in the handbook constituted an implied contract and the employer did not provide a good cause (a job-related cause) to fire Tom.

Does the handbook list the reasons for dismissal (e.g. performing poorly on the job, abusing sick leave, being excessively absent or tardy, possessing a weapon at work, being dishonest, using alcohol or drugs at work, gambling at work, etc.)? If the handbook states the employer reserves the right to fire an employee for any reason, that makes it more difficult for the fired employee to win a lawsuit, but the handbook cannot say this in one place and deny it or implicitly deny it in another place. As an employer, don’t take chances. If you fire only for just cause (for good reason), you will be legally protected against lawsuits that attempt to show you fired illegally, whether the employee is protected or not.

EXAMPLE: Rita has worked for Jones Enterprises for nearly 25 years. The company fires her just three months before her retirement benefits are to become permanent. In a wrongful discharge case against Jones, the judge finds that the company fired Rita to save itself the expense of paying her the full benefit of her retirement program. The firing breached the implied covenant of good faith and fair dealing (and Rita–being over 40–is part of a protected class).

As an owner or manager, fire only for a legitimate business reason and have documented support. Employers should be able to show: The employee knew his or her job duties; the employee knew the consequences for failing to meet the job duties, all employees have regular performance reviews; there were prior warnings given to all derelict employees; there was an appeal process in place for an employee to argue his/her case and/or to respond to allegations (if the violation was minor: Employees should be fired immediately for major violations of company policy, or even prosecuted if the case warrants it). HR should handle all documentation consistently for all employees, from job advertisements, to job applications, to performance reviews. Employees should sign their performance reviews.

EXAMPLE: The Mail Shoppe employs two men and one woman, Virginia, in its packaging department. One Friday afternoon, the owner fires Virginia. She then files a lawsuit claiming she’s been discriminated against because of her gender. In court, the Mail Shoppe’s owner is able to show that Virginia frequently put too little postage on packages and often neglected to insert bubble wrap as instructed, causing breakage and numerous customer complaints. The owner also shows that three written warnings were given to Virginia over a six-week period. The judge dismisses the gender discrimination lawsuit.

Use consistent procedures and documentations for all employees. All employees (at the same level) should be subject to the same performance reviews. If you let one employee engage in questionable activities, you might find yourself facing a lawsuit if you fire another for the same. If you electronically monitor your employees (for example, check the websites they visit during work hours), obtain all employees’ express consent to these specific practices when each person is hired, include your monitoring policy in your company handbook, and do not monitor only the younger workers or female workers, for instance.

EXAMPLE: Andrew, a black nurse, is a half-hour late for work three days in a row. His employer, a medical clinic, fires him. In suing for wrongful discharge based on illegal discrimination, Andrew shows that two white nurses had been similarly late in recent weeks but received only a verbal warning. Even though excessive tardiness is a valid business reason for firing someone, the jury awards damages to Andrew because the employer applied the rules unevenly and unfairly, and so the employer is found guilty of racial discrimination. (If Andrew were white, the employer is guilty of treating his employees inconsistently, but Andrew would not fall under a protected class and so could not utilize the inconsistency to his advantage in court, under existing law.) If you are not subjecting all your employees at the same level to the same rules, one of those not treated the same may fall under a protected class, in which case he/she could win a lawsuit for workplace discrimination.

EXAMPLE: An insurance brokerage firm received complaints that Ralph, a senior vice president, sexually harassed other employees. Ralph denied the charges, so the company interviewed 21 people who worked with Ralph, including 5 that he asked to be interviewed. The company concluded it was more likely than not that harassment had occurred, so it fired Ralph. Ralph sued for wrongful discharge, claiming he had an implied contract requiring good cause for firing him and that there was no good cause because it had not been proven he had engaged in the alleged misconduct. The court ruled it wasn’t necessary for the company to prove that Ralph had actually committed the sexual harassment. The company had only to show that it had a good faith belief that Ralph had engaged in the misconduct. The results of the company’s extensive investigation were sufficient to establish that good faith belief. The employer has the right to fire someone he believes, upon the strength of a good faith investigation, is engaging in activities prohibited at the company.

Employees can be laid off if business is not going well. But sometimes the layoff is a smokescreen for getting rid of employees for illegal reasons. If a layoff affects a legally protected employee only, the employer is vulnerable to a lawsuit.

If your employer creates an abusive work environment for you; insists you put in excessive overtime; demotes you without good reason; tells you to quit or you will be fired; or substantially changes your duties without good reason, this counts as being fired (“constructive discharge”). Now the question becomes if you are part of a protected class and this treatment of you was inconsistent with the treatment of others.

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A recent controversial example: The Twitter account @YesYoureARacist revealed the identities (with photos) of those who marched in favor of white nationalism at Charlottesville (in the hopes of getting these individuals fired from their jobs). This march unraveled when Heather Heyer, aged 32, was killed. She was marching against the white supremacists. She was a paralegal. If a client calls your business and says it has come to their attention (through photos, online media, or Twitter) that one of your employees appears to be a Neo-Nazi and was marching, what should you, the company president, do? There are two issues. One is the internal employee issue and the other is the external public relations issue. If the allegations are confirmed, the employer can decide to “rehabilitate” the person and change his/her ways; the employer has the right to attempt that. The employer can also choose to fire the individual if it is causing uneasiness or hostility between other workers, and/or if it causes your company to gain unwanted negative publicity (and/or to lose customers). Even if the Supreme Court never rules on whether or not it is legal to discriminate against white supremacists, your company can make it clear from the beginning that it does not tolerate discrimination against any minorities (or: We do not tolerate discrimination against anyone’s LGBTQ identification). This is also your company’s right, but it has to be explicit as a company policy that all employees see and agree to before being hired.

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