Being fired for a legal activity

AmateurScientist said:




The employment at will doctrine is very old and comes from English Common law from centuries ago.

Somehow I suspect that Denmark is not one of the countries whose legal tradition dates from the English Common law, though I might be wrong.

Similarily to the Norwegian one, Finnish "Työsopimuslaki 26.1.2001/55" states that (my translation since online FinLex-database contains only Finnish and Swedish texts and no translations):

§7.1 General Rule for Termination of Employment

A employer may terminate a permanent employment only for an objective and cogent reason.

The rest of §7 enumerates what those objective and cogent reasons are. A "permanent" employment is one that is not agreed to last only for a certain period of time.

[edited to add: When I was in high school we once visited a random court session. The case we ended following was such that a part-time employee sued her employer because he hadn't allocated any work hours for her and she was paid by hour. The case was that the employer had wished to fire her but when he had been informed that he had no legal reason to do it, he had withdrawn the notice but refused to give her any work, hoping that she would quit. I don't know how the case ended since we left before the verdict was issued.]
 
AmateurScientist said:
I suspect very much that is simply not the case. i doubt very much that employment law in Denmark is radically different from that in the US. The employment at will doctrine is very old and comes from English Common law from centuries ago.
Canada comes from the same English Common Law tradition as the United States, but we don't have employment at will here. The courts have implied a term into employment contracts that states that the employee will not be fired without cause unless reasonable notice is given. If a company is alleging cause, then they have to prove it. This can be difficult.

Basically, if you want to fire someone for the colour of their shoes, you must give them reasonable notice. What "reasonable notice" means depends on several factors, including the seniority of the employee, age and length of service. A very rough rule of thumb is one month per year of service. We also have an Employment Standards Act, which sets out minimum notice periods. Common law periods generally exceed the ESA.
 
reprise said:
How common is it in the US for the outside of work hours activities of employees to be restricted because of health insurance considerations (it seems like one hell of a slippery slope to me)?

It is very common that if you commit a criminal act in your off hours that you can be fired or forced into counseling.

Health insurance is a whole nuther ball of yarn...
 
MRC_Hans said:


I have at no point doubted your insight in US conditions. I merely pointed out that different conditions existed elsewhere.

Hans

Thanks for setting me straight and providing some insight into differing laws in Denmark. I will defer to your experience and knowledge.

Sorry about my stance, as we Americans do so often tend to be Americentric. In our defense, at least part of this can be attributed to our relative isolation on a distant continent, our neighbors to the north and south notwithstanding. Many of us have never even been to another country.

Question: Do the protections afforded workers by law mean that getting a job in the first place is more difficult? After all, as an employer I am going to want to be especially careful to insure that you are trustworthy before I hire you and become beholden to you.

What about insubordination? Is it used often as grounds for termination? It would seem to be a relatively easy pretext to use.

AS
 
bpesta22 said:


AS: I thought the burden doesn't shift once the victim establishes the prima facie case.


After the victim establishes his case, the company must then merely produce a non discriminatory reason for why they fired the person. No burden shifting.

Then, the victim could argue that the employer's reason was just a pretext for unlawful discrimination.


For summary judgment purposes, which in these lawsuits can be everything, once a plaintiff establishes a prima facie case, the burden of production (not the burden of persuasion) shifts to the defendant employer to provide some evidence of a non-discriminatory reason for the termination.

The burden of production then shifts back to the plaintiff to provide evidence that such reason is merely pretextual.

All of this takes place at the summary judgment level, not at trial.


I thought the burden only shifted in adverse impact cases, where after the victim shows the employment practice caused AI, the burden shifts to the employer to prove the practice is job related or a business neccessity.

I'm not familiar with that doctrine, but the burden shifting I described applies to all employment discrimination cases arising under Title VII.



***

Also, almost all collective bargaining agreements contain a "just cause clause" which says that the er will not discipline nor fire an employee without just cause.

Just cause then is determined through the grievance procedure, with a neutral arbitrator (as opposed to the company) having the final say.

So, in effect, doesn't management waive their EOW rights with this clause?

Seems like most police and fire departments nowadays are unionized, so I'm surprised this could happen.

I don't know. As the procedural protections afforded by such agreements can be quite different from those afforded private employees, it can be harder to terminate someone, even for good cause.

AS
 
Thanz said:

Canada comes from the same English Common Law tradition as the United States, but we don't have employment at will here. The courts have implied a term into employment contracts that states that the employee will not be fired without cause unless reasonable notice is given. If a company is alleging cause, then they have to prove it. This can be difficult.

Basically, if you want to fire someone for the colour of their shoes, you must give them reasonable notice. What "reasonable notice" means depends on several factors, including the seniority of the employee, age and length of service. A very rough rule of thumb is one month per year of service. We also have an Employment Standards Act, which sets out minimum notice periods. Common law periods generally exceed the ESA.

Thanks, Thanz, for that interesting distinction. I had no idea you had an implied employment contract in Canada.

AS
 
LW said:


Somehow I suspect that Denmark is not one of the countries whose legal tradition dates from the English Common law, though I might be wrong.

LW,

LOL. Good point. It would more likely be the other way around, wouldn't it, due to the Viking invasions?

Thanks for the quote of the Finnish law. We have no such equivalent in US federal law which governs purely private employees.

AS
 
AmateurScientist said:

Question: Do the protections afforded workers by law mean that getting a job in the first place is more difficult? After all, as an employer I am going to want to be especially careful to insure that you are trustworthy before I hire you and become beholden to you.

What about insubordination? Is it used often as grounds for termination? It would seem to be a relatively easy pretext to use.

I'm gonna butt in again with the Norwegian perspective. In Norway the employment contract often have a trial period of 3-6 months. In this period the employer is still required to give notice and have a valid reason. But the notice period is shorter (6 weeks instead of three months), and the reason can be 'less objective' and is less likely to end up in court.

However, as an employer you can fire me if you can prove I'm not thrustworthy. You can fire me if you have sufficient evidence I'm a slacker. (A couple of written reprimands and still no improvement, out on your head.) If I haven't done anything criminal you might have to give me three months notice, or pay me for three months, but can lock me out of the building immediately.

By the way, if you downsize and fire people for economic reasons you cannot hire again for a certain period of time. Norwegian companies that downsize go to a whole lot of trouble to get people to quit voluntarily. Including giving them extended severance packages, assistance in finding a new position, etc.
Oh, and if a company terminates your position because it's no longer needed they have to at least try to find you similar work within the organization, which means the bigger the company, the safer you are, until it's time for big time downsizing. (I survived this round though. :))
 
Job Applications

Check out the back of any standard job application, at the bottom, in the small print, right above where you sign. It states that you can be terminated at any time, with no warning, with no reason. Right below that, it says "I certify that I have read the above...." and then you sign it.

Of course, signing a contract doesn't actually mean a whole hell of a lot in the US these days, so long as you can prove that you feel persecuted.
 
AmateurScientist said:






Question: Do the protections afforded workers by law mean that getting a job in the first place is more difficult? After all, as an employer I am going to want to be especially careful to insure that you are trustworthy before I hire you and become beholden to you.

Here the law allows a four-month "trial period" in the beginning of an employment during which either side can get out of it easier. In some cases it may be extended for six months if a long training period is necessary for the job.

The law has still few loopholes. In some areas (nightclub workers in particular) temporary 1-3 month jobs are almost the norm. The law states that a person who has worked more than two consequtive temporary periods in the same place is actually a permanent employee, but the firms get around this by hiring work from different temporary worker agencies (that are often all owned by one person) so that a person might work in the same nightclub for several years but have 4-5 different employers during that time.

What about insubordination?

There's a grey are there. Obviously, a worker can be fired for not doing his or her work, but it is not always clear when insubordination reaches the point of "not doing the work". In any case, before firing the worker has to be warned at least once and the employer has to "investigate the possibilities of assigning the employee to a different work position". However, these niceties may be skipped if the worker did something seriously wrong.

As a general rule, the employer has to give a notice whose length is from two weeks to six months depending on seniority of the worker (two weeks if less than a year, six months if more than 12 years). The work contract may also be dissolved without a notice in case of severe violations. For example, if an employee doesn't come to work for a week and gives no explanation, then a notice period is not necessary for termination.
 
If this guy is chasinga criminal and has a heart attack it will be dubbed a workplace injury. You know how much in disabilty that will cost the city? The last thing they want is to be on the hook for cops dropping dead on duty due to smoking.
 
I once worked for a place where only non-smokers were hired. Smokers have to take too many breaks.
 
Tmy said:
If this guy is chasinga criminal and has a heart attack it will be dubbed a workplace injury. You know how much in disabilty that will cost the city? The last thing they want is to be on the hook for cops dropping dead on duty due to smoking.

or eating meat?
 
Sorry about a late answer, I have been away:

AmateurScientist said:
Thanks for setting me straight and providing some insight into differing laws in Denmark. I will defer to your experience and knowledge.

Sorry about my stance, as we Americans do so often tend to be Americentric. In our defense, at least part of this can be attributed to our relative isolation on a distant continent, our neighbors to the north and south notwithstanding. Many of us have never even been to another country.

No worries, mate :)! Heheh, it often seems that from the POV of Americans (US), there is nothing else in the world. Comes from being such a large and important country, I expect. Denmark is a little over 5 million people, so we have to be acutely aware of there being a surrounding world. ;)

Question: Do the protections afforded workers by law mean that getting a job in the first place is more difficult? After all, as an employer I am going to want to be especially careful to insure that you are trustworthy before I hire you and become beholden to you.

What about insubordination? Is it used often as grounds for termination? It would seem to be a relatively easy pretext to use.

AS [/B]
I see that other Scandinavians have already answered your questions. Conditions are very similar in Denmark. But I'll give my own answers anyway:

About getting jobs. No, it does not really make a difference because the conditions are the same for all. An employer hires the employees he needs, under the conditions that exist. Its like if one shop in a town doubled its prices, nobody would buy their goods there, but if all the shops did it, well... (of course, they might shop in the next town, but every analogy has its limits ;) ).

Also, there is a probation period, typically three months during which you can dismiss the new employee at shorter notice. In theory, you still need a reason, but in practice, it does not need to be as solid; stating that the new person has not adapted to the job as well as expected will often do.

Valid reasons for termination in Denmark (this is a general overview, rules and practice varies somewhat according to job type etc.):

Downsizing: A valid reason, depending on employee type, the downsizing has to be of varying severity. A construction worker can be laid off if there is no work next week, an accountant if the coming year's budget show a slump.

The particular job function is discontinued. The company must make a serious attempt to relocate the employee. Nevertheless, this is a well-known loophole: If you want rid of a troublesome person, you do a reorganisation that somehow leaves him or her without a function in the company. If all else fails you can outsource the function.

"Cooperation difficulties". This is an oft-used reason, usually with fair reason. It can be chemistry, or the company finds out it has hired the wrong person. You'd better be able to come up with some good and concrete examples, though, if the employee chooses to make a case.

Insubordination. Basically, refusal or failure to follow orders, often in the form that the employee does not do the job properly. An employee has the right to refuse to follow orders that may threaten his "life, health, or honor". This means that you cannot dismiss anybody for refusing to do something dangerous or illegal or something that would otherwise dishonor them (appearing naked comes to mind as an example). A dismissal for insubordination should be well documented. The normal procedure is to issue a warning in writing on the first occasion, followed by a dismissal on normal notice, if the situation does not improve.

Crime against the employer (e.g. theft), other crimes, severe disloyalty (like disclosing confident information), downright refusal to carry out a specific order, failure to show up for work without giving a valid reason. These are not only causes for dismissal, but ofte for dismissal without notice. Many court cases are about immidiate dismissal, where the employee sues the company to get payment corresponding to the notice period.

Dismissal notice is usually from 3 to 6 months, depending on seniority. There is a caveat for the employer here: The seniority includes the notice period. This means that if John Doe has three months notice period, but will gain four months in two months, you cannot give him three months notice now, you must give him the four he will have gained before the three months notice expires. Quite a few employers have run into that one.

During the dismissal period, you must employ the dismissed person in a relevant way (relevant to their education or the job held), or you can choose to set them free. This can happen in two ways:

You can let them stay home and send their payment on a normal scedule during the notice period. If the employee finds a new job within the notice period, you can withhold payment from the date he/she starts in the new job.

Or, you can send them home with an immidiate payment corresponding to their salary in the notice period. If they find a new job, you cannot demand a refund. This is often used for salespersons and other persons in sensitive positions on order to minimize the damage they might do due to vengeance.

Long rant, heheh. There are mucho details, but I guess this will do, otherwise do ask :)

Hans
 
And then you forgot one thing Hans, theese cases are NOT tried in a normal court but in a special "workers court" where the judges are specialists in theese cases. I would imagine that makes a lot of difference compared to the american legal system:rolleyes: :rolleyes: :rolleyes:
 
When you drag Civil Rights into the picture, things can change.

Who knows how they'd argue the case, maybe they'll say he's trying to quit and he has a disability... Watch how fast he gets his job back and nets a quick million bucks from the folks who fired him.
 
Ove said:
And then you forgot one thing Hans, theese cases are NOT tried in a normal court but in a special "workers court" where the judges are specialists in theese cases. I would imagine that makes a lot of difference compared to the american legal system:rolleyes: :rolleyes: :rolleyes:
Yeah, that's a funny thing. But when it is decisions pertaining to laws (like funktionærloven), they can be taken to ordinary courts too, although it seldom happens. Some of the union contracts (overenskomster) are in fact law too, because if there is a major disagreement, resulting in extensive strikes and lock-outs, it goes to a mediator institution, and if the parties cannot agree, the government sometimes steps in and turns the mediation suggestion into law.

(Boy, this must sound weird to Americans, but it actually works quite well)

Hans
 

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