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Can a ‘bad’ motive firing of an at-will employee backfire?

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in Employment Law,Firing,Human Resources

Marsha Bartel was an award-winning NBC journalist working on the “Dateline NBC” television show. Her employment contract with NBC said that at various intervals during its term she could be terminated for any reason or no reason. In essence, she was an at-will employee.

At one of those termination points, NBC fired her, claiming it was laying off staff. She sued NBC in federal district court in Chicago, alleging NBC had fired her for complaining that the show was not adhering to NBC’s internal ethical standards.

The case offers some important reminders about how to handle termination of at-will employees.

Allegations of lax standards

Bartel worked as a journalist for NBC for 21 years. She won awards for her work and was regarded as one of the best investigative journalists on the NBC news team. In August 2006, NBC assigned Bartel to be the sole producer of a segment titled “To Catch a Predator,” part of the “Dateline NBC” program.

NBC developed the ongoing series of reports with an organization called Perverted Justice, which uses agents pretending to be minors to lure adult men into web chat rooms. The men are encouraged to meet the “children” in person, ostensibly for sex. When they arrive, a reporter fires accusations at the alleged pedophiles while cameras roll.

As a journalist and producer for NBC, one of Bartel’s main responsibilities was to ensure compliance with NBC’s standards for ethical journalism and its internal guidelines. Bartel found numerous aspects of the “Predator” segment to be in violation of these standards and guidelines. Bartel informed her superiors at NBC of these problems, but she asserted that they took no steps to cure them.

Bartel then told her supervisors that she would not produce the segment.

A pretextual termination?

On Nov. 17, 2006, NBC informed Bartel that her contract would be terminated effective Dec. 25, 2006. NBC asserted that this action was part of a program of layoffs that it was making because of general economic conditions.

Bartel didn’t believe this explanation and sued NBC for breach of contract.

She asserted that the reason given for her termination was pretextual—that the real reason was her refusal to produce a segment that violated ethical and company standards. She also claimed her contract included an implicit restriction against firing her for this kind of reason. As a result, she claimed that NBC had breached her contract even though she was an at-will employee.

At will is at will

NBC moved to dismiss the complaint for failure to state a claim based on New York law, which, as it turns out, is virtually identical to Illinois law. NBC argued that the contract Bartel attached to the complaint was unambiguous and allowed it to end Bartel’s employment when and why it did.

The contract, NBC said, contained no restrictions on allowable reasons for dismissal and did not allow courts to recognize the implicit restriction for which Bartel was arguing. The district court granted NBC’s motion to dismiss, and Bartel appealed.

Both the district court and the appeals court agreed with NBC that the company could terminate Bartel’s contract for no reason, even if the “program of layoffs” reason that NBC gave was merely a pretext. According to the court, New York law (like Illinois law) “declined to recognize any judicially created exceptions to the common law understanding of at-will employment. Absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.” (Bartel v. NBC Universal, 07-3913, 7th Cir., 2008)

Outline reason for discharge?

The facts in Bartel present a familiar situation to Illinois employers in at-will situations. After all, an employer can fire an at-will employee for any reason or no reason. Why give an at-will terminated employee a reason for termination?

Specifying a reason can help rebut the inference that the employee was fired in violation of civil rights or other laws, or as a result of unlawful retaliation. (This assumes that the reason isn’t really a pretext to cover up some illegal reason.)

If you do offer a reason, tell the truth.

Even though it did not matter to the courts in the Bartel case that the “program of layoffs” appeared pretextual, be wary of stating reasons that are inaccurate in an attempt to “soften the blow.” That can harm your credibility if the employee files a discrimination or retaliation claim.

Note: Make sure your employee handbook does not imply in any way that terminations must be for cause.

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