Master Builder

Winter 2017

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G enerally, employment in Washington state is "at will." Although the law permits you to fire an "at will" employee for no reason, public policy and certain statutes define several unlawful reasons for terminating employment. For example, the law forbids an employer from discriminating in any way against an employee because the employee has filed, or spoken about filing, a claim for compensation. * While the law permits you to discipline or terminate an employee for reasons "including, but not limited to, the workers' failure to observe health or safety standards adopted by the employer, or the frequency or nature of the workers' job-related accidents" (RCW 51.48.025), the burden is upon the employer to prove an overriding justification for termination. With an open workers' compensation claim, if the injured employee is fired, the presumption is retaliation. An employee handbook, including appropriate policies, safety programs, and disciplinary procedures, can be an invaluable tool in defense of any claim of wrongful termination. A well-written employee handbook will include the procedures which, if followed, create the evidence required to demonstrate the true and lawful justification for the termination of any employee. However, it's wise to obtain legal advice before implementing an employee handbook, particularly if you wish to preserve the "at will" feature of employment. Without special consideration, some Termination and Employee Handbooks in Washington State BY SETH WALSH AMS LAW AND JEANEIL BROWN-NELLAMS APPROACH MANAGEMENT SERVICES policies and procedures are themselves unlawful and pose a risk of inadvertently creating an employment contract that replaces "at will" employment. For example, providing a memo saying "Dishonesty, drinking, or use of drugs on duty; recklessness resulting in an accident; or the carrying of unauthorized passengers shall be deemed su†cient and proper cause for discharge without prior notice. In all other instances of misconduct, at least one warning shall be given" together with an employee handbook saying "Fighting, disorderly conduct, and horseplay are prohibited," created an employment contract requiring the employer give a warning before firing an employee who fought with another employee on the job. On the other hand, handing out a memo which lists specific "Conduct Which Will Result in Immediate Termination Without Prior Warning," including "other employment-related misconduct which is determined by the company to be of an equally serious nature," together with a list of "Conduct Which Will Result in Disciplinary Action but Which Usually Results in Termination After Prior Warning," did not create an obligation to give a warning before firing an employee for misconduct. This was serious enough to warrant firing without notice, even though the employee's misconduct was not specifically identified in the first list for Immediate Termination, because the employer had not promised specific treatment and had reserved the right to determine other behavior. What's in your employee handbook? 62 master builder WINTER 2017 ¬"¬®"•—¯'° "±²˜"

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