Tuesday, April 15, 2008

The Colorado "Just Cause" Initiative

Colorado From Jon Hyman at Ohio Employer's Law Blog:

In Colorado, labor unions are trying to change the rules. The Rocky Mountain News reports that a coalition backed by labor organizations is trying to get a constitutional amendment on the November ballot that would eliminate Colorado's at-will employment system and require just cause for all terminations. Under this "just cause" initiative, employers would be restricted from firing or suspending an employee unless the employer can prove incompetence, policy violations, willful misconduct, conviction of a crime involving "moral turpitude," employer bankruptcy, or economic circumstances that provide for layoffs of 10% of the workforce.

This measure is exactly the type that could gain popular support, and would alter the landscape of employer/employee relations in this country if it catches hold. It's not so much that it will restrict reasons for termination, although that would be a problem. Most businesses (or at least those that want to retain good employees) do not terminate arbitrarily, but only for a good reason.

Three quick reactions: I don't believe that employers only fire employees usually for good reasons. I guess that is why Jon is still a management attorney and I no longer am. 

Second, I would prefer that just cause provisions be set up as a default rule which parties can contract around. In other words, employers would have to give employees extra consideration to make them at will.

Third, is this what the labor movement really wants? If Colorado employees have a constitutional right to just cause protection, does that not take away some of the impetus for wanting to organize a union?

In any event, I cannot imagine the Chamber of Commerce, NAM, etc., letting this go by without a very significant challenge.  In other words, don't hold your breath.

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/04/the-colorado-ju.html

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Tracked on Apr 15, 2008 9:06:13 PM

Comments

Very interesting. Do you know the details of the proposal -- for example, remedies, procedures, and burdens of proof? The one state in the union that has passed a statute replacing the at-will presumption with a just cause presumption (Montana) did so largely at the behest of *employers* who were trying to avoid large damage claims in wrongful discharge tort cases.

As to the union position, unions have long supported laws that give rights to unorganized workers, even if those laws might substitute for some protections unions previously provided. Moreover, as I have argued in print, unions might benefit from a general "just cause" provision because such laws could and should make it harder for employers to use the depressingly common tactic (in the private sector) of simply firing pro-union workers in the organizing stage. Of course, that gets us back to the question of what the remedies (and procedures and burdens of proof) under the just cause law would be.

Posted by: Joseph Slater | Apr 15, 2008 8:06:13 AM

The thing that could make this a little more palatable to employers would be if the reasons for termination could be reviewed by a panel of employees and managers, like union shops often have. A full on civil case for each termination is bad news for everyone.

Posted by: Jon-Erik G. Storm | Apr 15, 2008 8:45:05 AM

According to the state Chamber of Commerce web site, the first one that came up when I Yahooed, the proposal is very detailed. It lists nine "just causes" for discharges, requires the employer to tell an employee the reason for the discharge, and provides that a discharged worker can seek a hearing before a "mediator" -- whose role sounds more like that of a traditional arbitrator -- with power to make a final decision on whether just cause was present. The mediator will have the power to devise a remedy that can include back pay and an order to restore the individual to his or her job. While some details are left to the legislature to work out -- how to appoint mediators, and rules for initiating the mediation process -- the amendment itslef is obviously very "statute like" in content. Here are the "just causes": "Incompetence; Substandard performance of assigned job duties; Neglect of assigned job duties; Repeated violations of the employer’s written policies and procedures relating to job performance; Gross insubordination that affects job performance; Willful misconduct that affects job performance; Conviction of a crime involving moral turpitude; Filing of bankruptcy by the employers; or Simultaneous discharge or suspension of ten percent or more of the employer’s workforce in Colorado."

Posted by: Bob Covington | Apr 15, 2008 9:06:41 AM

"I don't believe that employers only fire employees usually for good reasons." If employers fired employees for good reasons, I would be out of business. As it is, I have cases where I can't believe the employer thinks it can get away with such blatant violations of the law. However, maybe it can. My clients have told me that, when they went to the EEOC to file a charge, they were discouraged by the investigator. All the more reason to keep up the good fight or, as Joe Lewis says, get into "good trouble."

Posted by: Rosario Vega Lynn | Apr 15, 2008 8:26:33 PM

I have had the opportunity to meet many a good management side attorney. Believe it or not, many prefer counseling employers to not make dumb mistakes in first place. In fact, many make their very large amounts of bread and butter that way, and they would be out of work if employers were perfect since consulting on compliance is a major portion of their work.

Posted by: Per Son | Apr 16, 2008 8:34:31 AM

Employer: I saw him stealing from me with my own eyes.

Former Employee: Didn't happen, not true, I would never steal. He just doesn't like me.

Arbitrator: I do not believe that the employer has sustained it's burden of just cause, because one eyewitness account is insufficient, where the employee has alleged bias. Reinstatement with full backpay.

Posted by: Tor | Apr 16, 2008 10:27:37 AM

The only reason that unions are pushing for this is to muddy the waters in opposition to the Right to Work initiative being proposed in Colorado.

It's alway entertaining when union leaders demonstrate their desperate fear of worker freedom by trying to hobble business.

Posted by: James Young | Apr 24, 2008 9:35:32 PM

The text of the initiative is here:

http://www.elections.colorado.gov/WWW/default/Initiatives/Title%20Board%20Filings/2007-2008%20Filings/Final%20Text/final_text_62.PDF

As just noted, this is one of several initiatives advanced by labor in Colorado this year in response to an "right to work" iniative advanced by some business groups. As an aside, even the Denver Chamber is not supporting the "right to work" initiative; interesting times here in Colorado.

Posted by: Brian Moore | Apr 30, 2008 3:56:26 PM

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