Wrongful Discharge

“Wrongful discharge” is a concept about which there is much misinformation and confusion in recent years. Many people misunderstand concepts such as “employment at-will” or “right to work” and make false assumptions about whether they be fired lawfully under the circumstances.

The term “right to work,” really does not have anything to do with the typical termination decision. It involves the basic right in South Carolina to work without having to join a union or pay union dues. What most people mean when they say “right to work” is “employment at-will.” Many people say that South Carolina is an employment at-will state. In fact, South Carolina is not much different than other states in terms of how it applies the employment at-will doctrine.

Employment at-will is a rather simple concept that means two things: (1) an employee may quit his or her employment at any time and for any reason otherwise restricted by contract; and (2) an employer may terminate the employment relationship at any time and for any reason. But there are several important exceptions.

An employer may not fire an employee “at will” if:

There is an implied or express contractual agreement;

The employee has provided “independent consideration” for the employment;

The termination would violate some other law, such as a discrimination,

   whistleblowing, or anti-retaliation statute; or

The termination violates a clear mandate of public policy (usually a policy found in

   a regulation or statute).

Implied or Express Contracts

Individual oral and written promises to employees may be enforceable and may counter the notion that the employer has reserved the right to terminate employment at will. There has been much litigation over the issue of when an employer’s policies or oral promises are binding as contractual obligations. These often arise where an employee claims that the employer did not follow progressive discipline or that there was some other oral or written promise made that the employer failed to live up to.

Other Laws

There are numerous laws that impact upon an employer’s right to terminate an employee. These laws supersede or override the notion of “at will” employment. Typical examples are the discrimination laws and their anti-retaliation provisions as well as other laws that protect employees from making both internal and external complaints of wrongdoing (i.e. some forms of “whistle blowing”).

Public Policy Exception

South Carolina recognizes a “public policy” exception, which precludes employers from firing employees if the reason for doing so violates a clear public policy. What the courts recognize as violations of public policy, however, does not include everything that is unfair or morally wrong. Instead, an employee typically must show that he or she was legally required to do the act that led to discharge, that there is some law prohibiting the employer from discriminating against the employee for the reason it did, or some other reason that is as offensive or compelling as a matter of public policy under certain circumstances.

Family, Health & Leave Issues

Payment of Wages

There are a number of laws that provide various protections for employees with health-related issues depending on the size of their employer and the nature of the situation at issue. The Family and Medical Leave Act (“FMLA”) requires covered employers (usually 50 or more employees) to provide eligible employees a leave of absence of up to twelve (12) weeks in any twelve (12)-month period

For the following reasons:

The birth of a son or daughter of the employee (maternity leave), and in order to

   care for such son or daughter;

The placement of a son or daughter with the employee for adoption or foster care;

To care for the spouse, or a son, daughter, or parent, of the employee, if such

   spouse, son, daughter, or parent has a serious health condition; or

Because of a serious health condition that makes the employee unable to perform

   his or her job (sick leave).

In many circumstances, leave may be taken in small amounts and on an as-needed basis, provided the employee provides as much notice as possible and the need for leave is properly certified. The FMLA also prohibits employers from retaliating or interfering with an employee’s right to take leave.

There are individual requirements for eligibility for leave. Generally, an employee must have been employed for one year and have worked 1250 hours prior to the leave. If the employee’s one-year anniversary comes during the leave, he or she may be covered. Also, the employer must employ 50 or more employees within 75 miles of the site of employment. This can include remote employees who report to the site, or even the remote employee who reports to a far-away site.

Discrimination on the basis of pregnancy also is protected by the Pregnancy Discrimination Act (“PDA”). The PDA states that discriminating against a woman on the basis of pregnancy is considered to be “sex discrimination” under Title VII. Generally, covered employers must treat pregnancies as they do other medical conditions and cannot discriminate in hiring or termination on the basis

of pregnancy.

The Americans with Disabilities Act (“ADA”) also may provide protections for certain situations. The ADA protects “qualified individuals with a disability” from discrimination and requires employers to offer reasonable accommodations to enable qualified persons to perform an essential job function. The ADA also protects employees who are not in need of a reasonable accommodation, but who are nonetheless excluded from employment on the basis of the employer’s perceptions of the employee’s impairments. The ADA also prohibits employers from discriminating based on an employee’s “record of impairment,” which can mean, for example, a medical history or former workers compensation claim.

Whether an employee qualifies for coverage under the ADA and whether the law requires an employer to take certain actions are complex issues that can only be evaluated on a case-by-case basis. For example, one need not be “disabled” to be covered under the law. Likewise, whether the employer has to offer an “accommodation” under the law is very fact-specific. Consulting with an employment law attorney can help you understand your employment rights.

Your employer may not demote or fire you because you filed a workers’ compensation claim. This does not make it absolutely illegal to demote or fire anyone who has had a workplace injury or illness. The issue is whether the employer demoted or fired you for filing a claim or for collecting benefits.

Contract & Separation (For Executives)

At Harris Law Firm, LLC we are adept at negotiating executive contracts and have helped a number of clients in high positions with several large Charleston, SC area companies. We also help employees in legal matters involving employment contract, sales commission agreements, separation agreements, and executive agreements and compensation.

Employment Contracts

When starting a new position it is important to carefully read the details of your contract. In some cases it is useful to seek advice from an employment contract attorney. We review documents and handle contract disputes in matters involving:

 Sales agreements

 Separation and severance agreements

 Commission agreements

 Executive contracts

 Contract disputes

 Non-compete covenants and trade secrets

Let us negotiate your next contract and make sure you are protected in laying the proper legal foundation in which to build your career.