Issue link: https://read.dmtmag.com/i/496801
27 Oil Prophets LEGAL CORNER business and identify situations where they can be corrected and exposures minimized. Employees at Will: Another question I am often asked is "Isn't Alabama an employment at will state and therefore I can fire an employee for any reason?" Alabama is in fact an "employment at will" state. What does that mean? First, it does in fact mean that absent an express employment contract with an employee, employers in Alabama – at least in a general sense – can terminate an employee for any reason or no reason. In reality, there is a handful of "be carefuls" in terminating any employee in Alabama. I am often called by clients who say, "I want to terminate this employee; can I do so?" As those clients will tell you, I always ask a series of the same questions. Those questions include some of the following: 1. Do they have an existing workers' compensation claim? If they do, then you have to be extra careful in any decision to terminate an employee with a pending WC claim. The Alabama workers' compensation laws in fact have a provision that you can be sued for retaliatory discharge if you terminate an employee because they filed a workers' compensation claim or sought workers' compensation benefits. You have to make sure you have an entirely independent basis for terminating an employee who has a pending WC claim. 2. All employers must be sensitive to the various discrimination laws in place in terminating an employee, thus I always ask the following: A.. How old is the employee? B. What is their gender, male or female? C. What is their race? D. Do they have any kind of physical or mental disability? The law recognizes all of these areas as providing protected "classes" of individuals based on these various issues. Several examples: It is o.k. to fire someone because they are 65 years old as long as you don't replace them with a 30- year-old who is less experienced and no more capable of doing the job than a 65-year-old. Also, you wouldn't want the last five people you fired to have been 65 years or older and a pattern can be shown of firing older employees. The same analysis applies with a pattern of firing females – or males for that matter – to the exclusion of the other gender. The same analysis applies to issues of race and employees with disabilities. There is a world of "be carefuls" as I like to say in that you need to seek legal device before making termination decisions. Often in conversations with clients about employment at will, I tell them that you can fire somebody for wearing a blue dress to work so long as you fire everybody that wears a blue dress to work. The problem is in the inconsistency of termination decisions, especially decisions that can be viewed as discriminatory against one of the above protected classes. Sometimes, frankly, we get into a situation that we have often experienced in advising clients who have an employee who has just become so difficult. He or she has become insubordinate, unproductive and frankly is just daring you to "look at them the wrong way," much less fire them. While I would always go through the above analysis to determine if this problem employee is a member of one of these protected classes, I often will support an employer's decision to terminate on the premise that an employer is not required to put up with this kind of employee, and the best thing for his or her business is to get the employee out of there. Getting and keeping good employees is one of the greatest hurdles any employer has to do today, and it is certainly the case in the convenience store industry. Representing this industry some 30 years has crystalized these difficulties. The turnover rate with convenience store employees is often off the charts. Fifteen or twenty years ago I represented a fairly large distributor/ convenience store operator who on any given day had approximately 350 employees on its payroll. For the preceding fiscal year, they had issued over 1200 W-2s, so you can see what kind of turnover rate this presents. Oftentimes a C-store cashier will go across the street to a competitor for another 50 cents an hour and have little or no loyalty to that prior employer. You can see the difficulty in trying to defend that prior employer on a matter that occurred while that employee worked there and you need him or her as a witness. They have little or no loyalty and are not inclined to help that prior employer. Candidly, distributors leasing their stores out is certainly in a large part driven by wanting to get out of the "employee business," as I like to say. Again, embedded in these topical discussions are a limitless number of issues that oftentimes require professional advice. You are certainly encouraged to pick up the phone and contact your legal counsel and make sure you have sound advice in addressing some of these issues. Please don't hesitate to call the P&CMA office or me to get any of these questions answered as well.