Law and fairness aren’t always the same
illustration by alexandra bye
The renowned Supreme Court Justice Oliver Wendell Holmes scolded a young attorney carrying on about some heart-wrenching inequity with a cold snap of reality. “This is a court of law,” he said, “not a court of justice.”
That distinction — the letter of the law versus what we think is just — doesn’t always feel right.
There is often outrage when our statutes don’t meet our moral sense of fairness. That was the case when a young Concord Monitor intern was dispatched to cover the feel-good news of the state’s first birth of the New Year. What Leah Willingham, a senior at Mount Holyoke College, quickly learned on the early morning of January 1, was the story was not about the bouncing baby boy, but rather his dad.
The story is now well-known. Lamar Austin, a part-time security guard and army veteran, was fired for missing work so he could be with his wife and witness the birth of his son. The story exploded across the news wires. Today, Austin’s name garners nearly a half-million Google search results — that’s twice as many as Governor Chris Sununu.
What followed the incident was a quick education about how few rights employees actually have to fight what may be perceived as an unfair firing. The state’s American Civil Liberties Union gets “tons of calls” about wrongful termination cases, says their lead attorney Gilles Bissonnette. However, since the cases are so laboriously fact-intensive and the policy advancements are so minimal, they are almost always turned down.
Like many, New Hampshire is an “at-will employment” state, which means no reason or formal notice needs to be given to fire someone, and conversely no employee is required to provide reason or notice to the employer.
“The law is designed to protect the employer,” says Jon Meyer, a Manchester attorney who represents employees. “The fact that you are treated unfairly doesn’t mean that you’ll have a legal claim.”
Meyer contends that, by and large, things are getting worse for employees. “It was not uncommon in the early 1980s for private sector employees to have meaningful protections,” he says. In part, the shift is a result of the decline of labor unions, which organize collective bargaining contracts for all employees that include, among other things, compensation, employee protections and due process.
But that’s not all, says Meyer. Those lucky few who get an employee contract may get more clarity on the terms of employment, compensation and period of notice required by either party to terminate. They can require (as some states do) that “just cause” be provided for termination. Typically, employment contracts broadly outline the terms of the relationship between employers and employees.
Those employees who are offered an employee contract are often afforded additional protections beyond what is in federal and state law, but increasingly, says Meyers, employees “are being asked to give up rights [in employment contracts].”
Simply put, employment contracts are agreements between two parties and are governed by the laws of contract. Employees and employers can agree to terms that limit their rights, provided that they are not contrary to law. This means an employee can be asked to sign an arbitration clause that requires disputes be settled outside the court system. Since in most cases employers have more leverage than employees, employment contracts increasingly include non-compete clauses plus compensation for education and training.
But don’t think employers can run roughshod — companies have a lot to lose. That’s why strong human resource policies and training are needed.
New Hampshire “may be an at-will state, but that doesn’t mean employers don’t get sued,” says Benjamin King, a Concord attorney who works with both employers and employees. Federal and state laws prohibit discrimination based on sex, age or disability, among other reasons. There are also protections in place for whistle-blowers. After the passage of Senate Bill 416 in 2016, employees cannot be retaliated against for requesting workplace flexibility, a provision that may have actually applied to Austin’s situation.
Jennifer Parent, a Manchester attorney and former NH Bar Association president who represents employers, says the key is “good communication” and that “the goal is for everyone to work in a safe, healthy environment.”
But, for the employer and employee, there seem to be converging interests to move on and not get bogged down in a fight that may hurt both parties’ reputations and their long-range goals of lucrative employment and commercial success. King suggests creating a clear record of progressive discipline, performance-based benchmarks and a predictable process. If the expectations are not met, “termination is not a surprise and no need for an extensive conversation,” he says.
The last thing any employer wants is to be sued, or maybe even worse, to become the butt of an unflattering, high-profile news story. As for Austin, the new father, he has moved to an electrician apprentice program with the International Brotherhood of Electrical Workers in Dover and holds no ill will toward his former employer.
“It’s been kind of weird for me,” says Austin. “At one point, I thought no one really cared about anyone else’s struggles. But at this point, God has shown me that people really do care.”