Welcome to the first episode of The Legal Way by Friedman Schuman! In this insightful legal exploration, we delve deep into the intricacies of at-will employment within the context of Pennsylvania’s unique legal landscape with Friedman Schuman attorney, Harold M. Goldner. Join us as we demystify the implications of at-will employment, shed light on its key features, and discuss the rights and responsibilities that both employers and employees should be aware of. Whether you’re an employer seeking clarity or an employee navigating the complexities of job security, this episode offers valuable insights into Pennsylvania’s at-will employment framework.
EPISODE TRANSCRIPT
Alyson: Hi everyone and welcome to the Legal Way podcast by Friedman Schuman. My name is Alyson Layser. I’m the Director of Marketing here at Friedman Schuman and your host of the Legal Way podcast. And today I am joined by a very special guest, Harold Goldner. He is the head of our employment law practice here at Friedman Schuman. And I am really excited for us to dive into a really great topic today all about at-will employment. So Harold, I’m going to let you introduce yourself, share a little bit more about what you do here at Friedman Schuman and what your practice entails here and anything else that you’d like to add before we dive into it.
Harold: Thanks, my name’s Harold Goldner and I am an employment lawyer. And that means I handle pretty much every aspect of the employment relationship from the time somebody is being considered for a position, that’s the hiring or the intake process. All the way through the time, that person loses their position, either because of something they do or because an employer makes a decision to terminate their employment. I also get involved where there are employment contracts or agreements that involve, that extend beyond the employment relationship. I get involved in resolving those disputes, such as involving restrictive covenants, non-disclosure agreements, trade secrets, and so forth and so on. I’ve been practicing law. Little bit more than 40 years and I’ve handled cases like this everywhere from when the phone call comes in trying to solve a problem to trying them before a jury.
Alyson: That’s amazing. I’m sure you have seen some really, really interesting cases in your over 40 years of practicing.
Harold: Yes.
Alyson: I can’t even imagine. I love hearing stories from all the attorneys here who have practiced for a while just hearing some of their craziest cases. Let’s dive into today’s topic. So at-will employment, I know that this is something that is obviously very prevalent where we practice in Pennsylvania. So can you just go into some detail about what at-will employment is?
Harold: Sure. At-will employment means unless you have an expressed employment agreement, you’re a free agent. You’re like James Harden. You can go work for anybody you want. You can play for any team that’s willing to pay your freight. You can do whatever you want and it basically harkens back to the beginning of this country in in Europe the employment relationship was very, very different historically because everybody hundreds of years ago worked for the king and if the king said this is what you’re going to do that’s what you did uh… and then later there was the concept of indentured servitude and if you remember a little bit of American history, when Franklin came over this country as an indentured servant. He had to work for a specified period of years before he could stop working. And in America, we sort of evolved a different concept, and that was employment at will, where an employee could leave an employer any time they wanted. But the flip side is an employer can terminate an employee any time they want for a good reason, a bad reason, or no reason at all. In Pennsylvania, unless you have an expressed employment agreement…a contract. Or for example, you’re in a union, which means your union has a collective bargaining agreement, which is a type of contract. You are an employee at will, and your boss can walk in any time they want and tell you, Joe, our customers love you, your coworkers adore you, management thinks you’re the greatest thing since sliced bread, but those are the ugliest shoes I have ever seen. You’re fired. And if the reason they’re firing you is because there isn’t anything you can do about it. There isn’t anything a court of law is going to do about it because courts don’t want to handle HR disputes. And that’s the end of it. The flip side is you can leave because you want to wear those shoes and go work for somebody else who doesn’t mind them.
Alyson: Yeah, I mean, I love when you share that because I think it really just shows exactly what at-will employment is. And it’s a very great visual. Now like you said, there can be some implications for employees. So can you go a little bit more into detail about what some of those implications could look like for an employee who might have been terminated because of at-will employment?
Harold: Sure. Well, basically, if an employer tells an employee to jump, the response should be how high. Basically, an employee’s job is to make their boss look good. Any employee who makes their boss look good all the time is pretty well guaranteed of perpetual employment as long as they make their boss look good. There are a few exceptions to at-will employment, and that is if you’re terminated in violation of a public policy. And the courts in this state have interpreted what public policy means to mean some sort of legislative enactment by the…the House of Representatives or the Pennsylvania State Legislature. So for example, we have a scheme called workers’ compensation. It’s a statutory scheme. There’s workers’ compensation laws. If somebody is injured on the job and brings a workers’ compensation claim and they’re fired because they brought a workers’ compensation claim, well, that would violate the statutory scheme that workers’ compensation creates, and therefore that would be a firing against public policy. And we call that wrongful termination. Another example, and this actually blows my mind, when you get a jury summons, that is under and pursuant to a statute that says when you get a jury summons, you show up for jury duty. A secretary in a plaintiff’s personal injury practice in Center City, Philadelphia, got such a summons, showed up for jury duty, and was selected for the jury. And her boss, a lawyer who practices in the courts of Philadelphia, fired her. Perhaps he thought he didn’t want to practice in Philadelphia anymore. He certainly didn’t ingratiate himself to the court. And he ended up paying an awful lot of money in a settlement when she sued him for wrongful term and age.
Alyson: I would think so. That is so crazy.
Harold: Absolutely justified and well-deserved, I might add. Especially being a lawyer. I was so surprised that… You would think that a lawyer would recognize that the laws apply to him or her as well, but they don’t always get that.
Alyson: That is so interesting. Oh my gosh. So clearly, just based off of what you said, employees, they do have rights if they are terminated wrongfully or terminated because of out will employment, because of their shoes or whatnot. Are there any other rights that you didn’t go through that would be really beneficial for somebody to know?
Harold: There is one interesting right, and it actually involves the National Labor Relations Act. the union environment, if you’re in a union shop, or if you are represented under a collective bargaining agreement. However, there is a portion of the National Labor Relations Act which protects people who engage in what is known as concerted activity. That means if, for example, all the employees work in a specific warehouse and the warehouse isn’t properly heated and all the employees are freezing to death and they start to communicate with each other and go, we gotta get heaters in here, we gotta do something about this. And they speak with each other about the welfare of the employees in the workplace. If they’re punished for doing that, that violates the National Labor Relations Act, even if they’re not union employees, because that’s considered concerted activity and that is protected.
Alyson: Okay.
Harold: Another exception to employment at will is if an employee works for a public employer or an employer that is largely funded by the government and learns that there is waste of government dollars going on, meaning they work for a hospital and money that’s supposed to go for bandages is actually being spent on trips to a race track or for inappropriate government waste, basically the expenditure of government money. And they report that to the Department of Health. They report it to whatever the agency is that this government waste is going on. And they are then punished, fired, terminated. That violates the Pennsylvania whistleblower law. But it has to involve government funds, so it has to be an employer who’s getting government funds. So if you’re working for a mom-and-pa shop in a grocery store or a bodega somewhere and somebody’s wasting money on lottery tickets or something like that, that doesn’t involve government funds. That’s nobody’s business and it doesn’t violate the whistleblower law. A lot of people call themselves whistleblowers because they basically see themselves as tattletales for some sort of irregularity. That’s not whistleblowing. Whistleblowing is government. The waste of…government dollars by an employer that’s supported by government dollars.
Alyson: Gotcha. That’s definitely something that’s very good to know. Very good to know. So what are some things that employees, more specifically in Pennsylvania, but employees in Pennsylvania can do to really protect themselves against wrongful termination and at-will employment? Are there things that they can do to be kind of proactive in the instance that…they could be wrongfully terminated?
Harold: Well, one of the things I see, unfortunately, too often is employees who call me too long after they were terminated. Sometimes years, which is I don’t understand why. What happened two to three years after they were terminated? It suddenly occurred to them maybe to call a lawyer. But two really important things. One is don’t quit. If you think something is going on, at your workplace and you’re not happy, you feel you’re being treated differently, don’t quit. And the reason you don’t quit is because if you quit, you don’t qualify for unemployment compensation. As long as, a lot of people think that if they’re fired, they don’t qualify for unemployment. But you do. Unemployment benefits will extend to anyone who is terminated from employment, quote, through no reason of their own, close quote. If your employer says, if you’re late one more time, we’re going to fire you. And the next day you come in late, that’s called willful misconduct and you won’t get unemployment benefits. Or if you have a really wild weekend and get picked up for DUI or something terrible and you spend the night in jail and the employer, you don’t show up for work. And the next day after that, the employer says, what, you didn’t show up? That is not termination through…no fault of your own. That’s called a Section 2 disqualification. But as long as you haven’t deliberately violated a workplace rule knowing that doing so would get you fired, you get unemployment as long as you don’t quit. If you quit, it’s all over because your employment ceased through your own fault. The second thing is don’t sign anything ever on your way out the door. Ever. Make, have somebody else review it. I was just today talking to somebody who was terminated after 25 years on the job, and unfortunately, after spending 40 minutes on the phone with him, I realized it was his fault, and there really wasn’t anything I could do for him. But he commented to me that he signed a confession while he was there, and that’s the end of it. You sign a confession; you sign any statement at all. You sign a release, I represented a guy, tried to represent a guy who, it was clearly age discrimination, but he signed a document because they told him, if you sign this, we’ll give you two weeks, your two weeks’ vacation. And he was just thinking, well, I got to have money, so he signed it. But that’s not how that works. For example, if you’re over the age of 40 and an employer offers you a release in severance, they have to give you at least 21 days to review that release. And then after the 21 days, even if you sign it, they have to give you seven days to revoke. And if the employer is doing what we call a reduction in workforce, they have to give you 45 days and they have to give you a whole list of who’s being affected by the reduction in workforce. So don’t sign anything and don’t quit.
Alyson: So in terms of signing a document, if your employer were to ask you to sign something, what would you suggest an employee do or say? Would you suggest that they just take the document and say, I’d like to review this, have their lawyer look over it? What exactly would the process look like for that?
Harold: In most instances, if it’s a release, if it’s a severance package, the document says you have 21 or 45 days to review it. It also says you have had this reviewed by a lawyer. So, as long as you don’t have an HR department that is completely unqualified or untrained, they’re going to know that you have the time to look at it. So, you can say to them, I’m going to take this to my lawyer to look at this. And in fact, I would encourage people to say, I’m going to take this to my lawyer. And the reason is it implies you already have a lawyer. Even if you don’t, it suggests to the employer that, oh. we may need to deal with this as a cost center. Yeah. So, by all means.
Alyson: For sure. That’s really, really great information. And I think a lot of what you touched on, you know, somebody, a normal person just going into a workplace, getting a job, they’re not going to necessarily know all of these things.
Harold: No.
Alyson: Are there any resources for people to maybe look over, you know, certain things like this before they were to become employees?
Harold: You can always go to Dr. Google, or Google lawyer. Nolo Press has an interesting book helping public employees for resources. If you are in a union, your union can usually help you. And a lot of unions have captive law firms that will help them with stuff. Their bar associations have lawyer reference services that usually tie people to, you know, if I get cases all the time from the Montgomery Bar Lawyer Reference Service, they know somebody calls the bar association, oh, it’s an employment matter, talk to Harold Goldner. Philadelphia Bar has a lawyer reference service as well. But I would say don’t ever sign anything or don’t commit yourself to any course without first talking to an employment lawyer. I may well, and many people I talk to, I may say, there isn’t anything I can do for you. Like the gentleman I spent 40 minutes on the phone with today. But sometimes there is something I can do.
Alyson: Yeah, for sure. On that same topic on resources, are there any resources available to employees, again, more specifically in Pennsylvania, just because of practice, who believe that they have been wrongfully terminated? Are there any resources for those types of employees?
Harold: I think there are no agencies. There’s agencies that deal with discrimination, which we may get to. But as far as-
Alyson: Yeah, that’s a whole other episode.
Harold: But as far as at-will employment goes, you’re pretty much on your own. If you don’t have a union to help you, you’re pretty much on your own, so you should try and find a lawyer before you do anything that makes it final.
Alyson: Yeah. That’s really good to know. So, anybody who’s listening, if you are in that type of a situation, get with a trusted attorney because they will be able to help you out and just kind of guide you along through that process and help you navigate it. So, as we start to wrap up this episode, I have just two more quick questions for you. So, what are some of the challenges, now I know we’ve touched on this a little bit, but what are some of the challenges that employees face under at-will employment?
Harold: Well. I have a lot of people who complain to me that they weren’t trained properly. And they feel like, or they feel like their job was too big for them. Or the job was originally designed for three people and the other two were fired so they’re the only one doing the job. And they just, they don’t feel like, they’re sort of like, and it’s, I’m dating myself, but there’s a classic episode of Lucy on a chocolate assembly line.
Alyson: I’ve seen that episode.
They’re trying to get the chocolates, so she starts popping them in her mouth and so forth. And the fact of the matter is, again, the courts don’t get involved in human resources management. Their courts are perfectly happy to let an employer be as incompetent, as badly managed as it chooses to be. They don’t get involved unless the employer ultimately ends up in bankruptcy court, and that’s a different court altogether.
Alyson: Yeah.
Harold: So, what I try and explain to people is if your job is to stand on your head and spit nickels and all you know how to do is stand on your head and spit Carson City silver dollars, which are worth a fortune, your employer can still fire you even though they’re making much more money on you than they want to. You’re not doing what they want you to do. That’s why I keep coming back to just make your boss look good. Make your boss look good and you’ll be just fine. But that’s, you know, it’s too bad if you have a miserable job, you don’t feel you have adequate training, you don’t feel you’ve been assigned to the right thing. If that’s the case, get another job. Work on your resume. Control your environment. I know I said don’t quit. Don’t quit. Get another job. Get the new job and then you quit.
Alyson: Interesting. Now, in your experience in the past couple years, have you…heard from more people saying that maybe they haven’t been properly trained and that’s why they were terminated or X, Y, or Z due to COVID. Have you seen anything?
Harold: I did see that in the banking industry. I had a couple of clients in the banking industry because banking changed dramatically during COVID. Remember how you used to be able to walk into a bank branch? And then after March 16th of 2020, you walk up to the branch and it said, we’re not open or you need to make an appointment. It was very, very different. And so a lot of people who were tellers were put in other positions. They became loan officers. They became paper handlers. And that wasn’t really what they were trained to do. They were used to walk up to them and they, you know, can I have 520s for this or whatever. And I saw a couple of people who had some problems with that transition who, you know, they’d spent their whole lives doing one thing and they really couldn’t make the transition over. to another thing.
Alyson: Yeah, it’s so interesting you said that too, because I’ve talked to some of the med mal attorneys as well. And with some of their cases, some of the people who were employed by nursing homes and things like that, they had the same, they were expressing that same difficulty that they were doing things that they weren’t necessarily trained to do. And unfortunately, there were some medical malpractice cases as a result of that. So, I was just curious, because I know that COVID impacted employment as a whole a lot you know, that whole crazy time period.
Harold: Well, there was also the issue during the, once the vaccines were available, there was also the question of, well, do you get vaccinated or not? And I was assisting a lot of employers in writing vaccination policies, especially for those employees who were dealing with the public. So outside salespeople who were gonna go into a lot of offices, you know, employers wanted to require them to be vaccinated so they didn’t become carriers their employer suddenly on the hook in some way for having infected their customer’s workplace. So, I had to deal with a lot of that during the vaccine period. In the early phase of COVID, I had to assist employers in determining whether they were allowed to stay open or not. I had one employer that was doing, they manufactured certain types of laboratory equipment. And it didn’t seem initially that they were under the exception, but they were actually manufacturing equipment for pharmaceutical companies, which did exclude them. So initially they thought they were going to have to shut down, and then we interpreted the rules and said, no, you can stay open, and they remained open.
Alyson: Wow.
Harold: Yeah, there were definitely a lot of things during that time period when it came to employment law. And a lot of things that affected both employers and employees.
Alyson: Yeah, I’m glad that we’re for the most part out of that and I’m sure you are too.
Harold: It was a difficult time. It was a very difficult time, but it was a very interesting time. I was extremely, I was very busy 2020, 2021. Helping employers and employees deal with the situation that no one had ever dealt with before. Yeah, absolutely. And I’m sure that you can even now take some of the things that you experienced during that time period and can now even apply it to, you know, cases and things that you have now, which I think everything’s a learning experience.
Alyson: Oh, it was a learning experience for sure. Well, before we wrap up this episode, I have one more question for you. Are you seeing any future trends or what are some future trends for at-will employment in Pennsylvania?
Harold: I’m not seeing any changes in at-will employment. I’m seeing some changes about certain types of contracts that that bear upon the employment relationship which we didn’t really discussed today i and the only other thing is there are some borderline areas where we are waiting to see if courts decide they are quote public policy exceptions close quote to uh…an employee who had asthma was working in an environment in which they had a smoking room that they used in the winter time. In the summertime, everybody smoked outside. The problem was it was like a lot of offices, including this one, where you have a dropped ceiling with those white tiles. Well, there’s like a foot and a half, two feet over top of that where you can cable and duct and stuff like that. Well, if in the next room they’re smoking…It’s coming over the wall and it’s coming into the room that you’re in. And she was over one office or two offices from the smoking room. And I saw video pictures of the smoking room and it was disgusting. It was in buckets with just thousands of cigarette butts in it. And they said, well, you can have an air freshener just because you’re having trouble with your asthma. And that wasn’t good enough. And…there were a number of other things, and she finally got frustrated when the employer just wouldn’t do anything about it and kept smoking. And it was the boss. It was the owner of the company. She called the Department of Health, and there’s something called the Pennsylvania Clean Indoor Air Act. And the Department of Health cited the employer for violating the Clean Indoor Health Act. Query was that a violation of public policy because there’s an act and uh… no case no court has really decided that yet and he resolved our matter before we had to test it there are new policies new legislation new legislation all the time and one can uh… one can see that there will be some law passed down the road which if violated might constitute a public policy exception.
Alyson: Very interesting. Well, I feel like that could be a whole other episode in and of itself. So we’ll have to add that one to the list. But Harold, thank you so much for joining us today and just sharing a little bit more about at-well employment, most specifically in Pennsylvania. I know I learned a lot and I’m sure that all of our listeners did as well. So thank you so much and we will be back again soon.
Harold: Thanks very much.
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