It's All Too Easy to Get Fired in America: In 49 of 50 States, You Can Be Fired for Any Reason
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Some members of the business community decided a specific “just-cause” law would be preferable to the court’s de-facto elimination of employment-at-will. But despite the law’s less-than-leftist origins, the protections for Montana workers still go far beyond those offered to non-union employees in any other American state (although both Puerto Rico and the U.S. Virgin Islands also have just-cause laws).
But the protections codified by the Montana Wrongful Discharge Act have strict limits. Workers can only win back an amount equivalent to four years of lost wages and benefits, minus any amount they’ve made since their discharge, or what they could reasonably be expected to have made.
That means low-income workers will have a hard time accessing the Wrongful Discharge Act’s protections. A fired worker earning $10 an hour, working 2,088 hours a year, is making almost $21,000. She could be reasonably expected to find a job paying $8/hour, so she can only expect to win back $2 on the hour. Good luck finding a lawyer willing to take a case with the top potential winnings of about $16,500. (The recovery might be even less, as Montana’s minimum wage is $7.80.)
“The act significantly limits the amount of recovery and therefore wrongful discharge is, practically speaking, a cause of action only for higher paid employees,” says Karl Englund, a Montana labor lawyer who was a lobbyist with the Montana Trial Lawyers Association when the law passed (it did not support the final bill). “It doesn’t particularly help low-income workers because damages are capped at a low enough amount that it is not economically feasible to bring a case. In theory they have one, but in practice not really. If you are a $100,000-a-year employee, then it’s a different story.”
This isn’t the end of the Wrongful Discharge Act’s restrictions. The bar for recovering punitive damages was raised considerably, while damages for pain and suffering or emotional distress have been ruled out entirely. To save on court costs, either party can offer to arbitrate the dispute and if the worker steps forward first, and is successful, all costs of the arbitration will be recovered too. But if either party rejects an arbitration deal, whomever wins can force the loser to cover their attorney costs.
“It’s a high stakes game, because if you…lose you have to pay all of the costs…including employer costs,” says Sandi Luckey, communications director for the Montana State AFL-CIO. “That’s not a manageable risk for a low-wage employee. It’s hard enough to pay your own fees. If you are a low-wage employee, justice is out of reach.”
Montana’s just-cause law isn’t much like its counterparts in the rest of the developed world. (The Big Sky state’s McDonalds workers should provide cheese to their colleagues sparingly.) An ideal just-cause law, as described by Paul Tobias, Cincinnati labor lawyer and founder of the National Employment Lawyers Association (NELA), would simply ban employers from firing workers without a just cause. Violations would be referred to a jury trial, where back pay, front pay (if the employee is unable to find other work) emotional damages, and punitive damages could be awarded. Attorney fees would be covered so even the lowest wage workers could retain legal services.
Such a law would not be written at the behest of the business community.
“Any just-cause campaign would set the management world afire in any state,” says Tobias. (NELA has long fought a lonely, and largely academic battle against employment-at-will.) “They would all get behind opposition, powerful lobbies would emerge to fight it. We have considerable moxy with liberal groups, unions, but it wouldn’t match the ability of management to muster the huge anti-campaign that would emerge anywhere.”