NH Opinions: Unjust firings are simply business as usual

It’s a sad commentary on our time that the subject of workers’ rights has receded so far from public view. In the last election cycle, both locally and nationally, the rights of workers were a non-issue. The implicit message: Workers have nothing to complain about, and they should be glad if they have any job.

Nowhere is this more true than New Hampshire. Initiatives to expand workers’ rights are almost as rare as snow in the summer. Yet we have all watched in dismay the sobering spectacle of good-paying jobs disappearing or being outsourced to Third World countries.

Since the economy soured after Sept. 11, 2001, I have observed a steady stream of New Hampshire workers getting fired from their jobs for trivial or bogus reasons. Far more often than not, job protection against unjust dismissal has been non-existent.

Let me illustrate with a story. Ron (not his real name) is a 65-year-old Charlestown native who had worked full time at a New Hampshire Wal-Mart. He had worked in the hardware, automotive and lawn and garden departments.

Ron had started out at Wal-Mart earning $6.25 an hour. He consistently got good work evaluations. After 11 years on the job, Ron was earning $11.48 an hour. He regularly worked different shift hours. Monday was 7 a.m. to 4 p.m., Tuesday was 10 a.m. to 7 p.m. He had Wednesday off. He was back working 10 a.m. to 7 p.m. on Thursday. Friday through Sunday he worked 2 to 10:30 p.m.

Ron had an unusual problem at Wal-Mart. According to his bosses, he did not take his breaks on time. Ron was fired the third time he did not take a timely break after working five hours. On his third violation, he clocked out for his break three minutes late.

Wal-Mart stated that Ron violated company policy, and they claimed the company could be fined under federal law if he worked more than five hours without a break. Ron claimed the store was under-staffed. He said he was late taking breaks because he was responding to customers.

Ron complained that Wal-Mart failed to offer any assistance in remembering that breaks had to be taken. He said the company had done that when he started, but the procedure had stopped.

Ron’s story is hardly unique. I have seen numerous comparable examples of a worker getting fired for a lame reason. In the case of Wal-Mart, it is hard not to think that the motive was to replace Ron with a worker starting at the bottom of the pay scale.

Like Ron, most employees in New Hampshire (and in the United States) are employees at will. They can be terminated by their employer for any reason or no reason. The original 19th century idea was that employment could be terminated for any reason by either the employer or the employee. Employment at will predates any government regulation of the workplace and places highest value on individual freedom of contract.

There are some exceptions to employment at will. If a worker has a written employment contract or is a union member, that worker may have some protection against unfair discharge.

However, most workers in New Hampshire do not have those protections. Courts have generally failed to protect workers in New Hampshire unless the case can fit in a narrow public policy exception. Most employers are smart enough to avoid that scenario.

Because the law is so one-sided, even if a worker gets fired for abusive, irrational or morally reprehensible reasons, it is often hard for a worker to find a lawyer to take their case. The deck is heavily stacked against the worker.

The underlying premise of employment at will is wrong and outdated. In this era, individual workers do not have equal bargaining power with behemoths like Wal-Mart. Among all the advanced industrial nations, the United States stands alone in failing to provide any real protection against wrongful termination of employment.

Our Legislature has an opportunity to address a part of the problem this session. Rep. Rip Holden, R-Goffstown, is sponsoring a bill that would protect public employees who speak out about matters of public policy relating to their employment. While limited to public employees, the bill is a step in the right direction because it would help to protect free speech rights in the workplace.

Sometimes because things have been a certain way for a long time provides justification for antiquated law. Protecting workers from wrongful termination is a noble public policy goal. While we have a tradition of rugged individualism in New Hampshire, there is also value in protecting the weak from abuse by the strong.

Jonathan P. Baird is an attorney who runs the Claremont office of New Hampshire Legal Assistance.