In the latest Weekly Wright Report:

• Right to Work vs. At-Will Employment – What Does it all Mean? – read now
• Pushing the Envelope Too Far – read now

Right to Work vs. At-Will Employment – What Does it all Mean?

It’s easy to get confused about these unrelated legal concepts. Allow me to demystify:
The right-to-work doctrine, originally established in the National Labor Relations Act (NLRA) of 1935, gives employees the right to refrain from engaging in collective workplace activity such as labor organizing and union representation. A right-to-work state is a state that does not require union membership as a condition of employment. There are currently 25 states which have passed Right to Work laws: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming.

In states that do not have “right to work laws” including Maryland, a candidate applying for a job with a unionized workforce could be required to join the union as a requirement of being hired. Maryland employees may also be required to be members of a union or pay union dues.

The employment at-will doctrine is what governs employer and employee rights in terminating an employment relationship. The employment at-will doctrine applies when either the employer or employee can terminate an employment relationship at any time without consequence. In other words, the employment relationship can be terminated for any reason or no reason at all. Of course, the employer cannot terminate an employee for an “illegal” reason, such as because of the employee’s membership in a protected class (e.g., age, race, religion, disability, sexual orientation, etc.).

Typically, when unionized workforces have negotiated collective bargaining agreements, the employment at-will doctrine gets eliminated.

Pushing the Envelope Too Far

A recent case from the Fourth Circuit Court of Appeals serves as a stern reminder that there are limitations on how far an employee can go in seeking to gather evidence to support their employment related claims. In Netter v. Barnes, the Court affirmed the lawful dismissal of an employee who reviewed other employees’ personnel folders and provided the information to the EEOC to support her own claim without permission from her employer or the other employees. The employee attempted to defend her invasion of privacy by claiming it was “opposition or participation” activity protected by Title VII of the Civil Rights Act of 1964. The Court disagreed.

The plaintiff, an African-American Muslim woman, worked for the Guilford County, North Carolina, Sheriff’s Office and initially alleged she was unfairly disciplined as an act of race and/or religious discrimination. After she claimed other similarly situated officers who were not African-American nor Muslim were treated differently, she responded to the EEOC’s request for information by reviewing and copying the personnel files of five other employees and then provided them to the EEOC in support of her claims.

Once the Sheriff’s Office discovered her actions, it terminated her because she violated department policy and North Carolina law which imposes criminal penalties for reviewing or disseminating county personnel files without approval. The Court did not agree with Plaintiff’s new charge claiming her actions were protected activity under Title VII. The Court noted that although employees are protected against retaliation when they reasonably oppose an unlawful employment practice, her unauthorized access and production of confidential personnel information did not qualify. “Unauthorized disclosures of confidential information to third parties are generally unreasonable” and the illegal access of confidential records cannot constitute protected activity. Unless the employee could show the Sheriff’s department claims for termination was a sham, her unlawful deeds did her in.

This case serves as a reminder to both employees and employers that once a claim has been filed, they need to continue to permit the investigative process to work as it is intended to do. Employees and employers should continue to cooperate in the investigation. Employers must ensure that there is no retaliation against the individual who filed the claim or anyone who is participating in the investigation. Employees must be mindful that the simple filing of a claim or participating in an investigation does not guaranty protected employment and they must continue to be mindful of their employer’s other policies and requirements.

Before you fire an employee during the pendency of an EEOC or employment investigation, make a quick call to WCS’ Employment and Labor Group.

Want more? Visit the Weekly Wright Report page to browse past issues.