Richard C. Busse obtained his law degree in 1974 from the University of California, Hastings College of Law. He began practicing employment law in 1975. From 1975 to 1981, he defended employment cases, both with a defense firm and in his capacity as Chief Deputy County Counsel for Multnomah County, Oregon-the state's most populous county.
In 1981, he set out on his own to develop a plaintiff's employment litigation practice, and has practiced in that field ever since. He is now senior partner in the Portland law firm of Busse & Hunt, which is devoted exclusively to the practice of plaintiff's employment law. Mr. Busse represents victims of wrongful discharge, discrimination, defamation, and other workplace torts. His cases have established important legal precedents in the field. He is a frequent speaker and has published articles on employment law since 1981. Mr. Busse is also the author of the bestselling Employee's Rights: Your Practical Handbook to Workplace Law, Sphinx Publishing (2004).
Mr. Busse has been listed in the national peer review publication The Best Lawyers in America every year since 1989 for labor and employment law in Oregon. His firm was named the leading plaintiff's employment law firm in Oregon by Chambers US, America's Leading Business Lawyers, 2003-04; and he was awarded its highest individual rating. The nationally known legal directory, Martindale-Hubbell, also gives Mr. Busse and his firm its highest rating for legal ability and ethics.
Top Ten Wrong Ideas Employees Have about Their Employment Rights
Excerpted from Fired, Laid Off, or Forced Out! by Richard C. Busse © 2005
Most employees are at-will employees who may be terminated for any or no reason, unless the real reason falls within one of the exceptions to that rule. Because those exceptions are not well understood and may not apply in some situations, employees are frequently misinformed about the extent of their legal protection at the very time it matters most-when they must respond to an adverse personnel action.
What follows are the top ten i n c o r re c t notions held by employees about their employment rights.
1. There is due process in the workplace.
Most workers can be terminated at the whim of the employer at any time, for any lawful reason, with or without due process. Even employers who purport to follow a progressive discipline system, in which progressively severe levels of discipline will precede termination, typically retain the right to skip steps and proceed to termination immediately. There are only four exceptions to the general no due process rule that are only available to limited groups of workers. Those exceptions are:
? union workers with a strong c o l l e c t i v e bargaining agreement;
? non-management government workers in the public sector;
? Nevada workers in cases when an employee's integrity is questioned on information by a spotter; and,
? workers with an employment contract specifically granting due process.
2. You have a right to know why you have been terminated.
Except in Indiana, Maine, Minnesota, and Missouri-where an employer must provide a written statement of reasons for termination to a terminated employee - your employer does not have to tell you why you were fired. In the great majority of states, your employer can simply tell you, "You're fired." While that may create anger and only drive you to seek out a lawyer, in forty-six states, that is the only information your employer is required to give you .
3. If you are hired for a particular job, your employer cannot change it.
Except for restrictions contained in collective bargaining agreements, self-imposed government regulations, or individual employment contracts, although you may have been recruited or hired for one position, your employer can change your job altogether after you are hired. You are free to refuse to accept the change, but if you do, your employer is likewise free to fire you for your refusal.
4. After you are hired, your employer cannot reduce your pay.
Subject to contract requirements and government regulations, an employer is free to reduce your pay prospectively. Although an employer cannot hire you today for $10.00 an hour and pay you $8.00 at the end of the day, it can tell you today that if you show up
for work tomorrow, your pay will be $8.00 from that point forward.
5. You have free speech rights to express your opinion at work.
The guarantee of free speech that is contained in the Bill of Rights to the United States Constitution is a limitation on governmental power, not the power of private individuals or entities (such as corporations). Therefore, an employer is free to terminate you for expressing your opinion. (The exception is in Connecticut, which by statute prohibits both public and private employers from, in some circumstances, terminating employees for speaking out on matters of public concern.)
6. On-the-job harassment is illegal.
There is no law against harassment, generally. While some employers may prohibit harassment in the form of an enforceable policy statement, harassment itself becomes illegal only if it was committed because of your protected class status. So unless you are
being harassed because of your race, color, sex, age, religion, or disability, or because you have engaged in protected activity (such as resisting sexual harassment), nothing bars an employer from engaging in some form of harassing behavior toward you.
7. On-the-job discrimination is illegal.
Discrimination, like harassment, is not unlawful, generally. An employer is free to discriminate by giving better treatment to some employees over others (as long as it is not because of an employee's membership in a protected class or because they had engaged in some form of protected activity).
8. Your boss cannot retaliate against you.
Retaliation, in general, is not unlawful. Retaliation becomes unlawful when it is committed because an employee has engaged in activity that is protected as a matter of public policy, such as reporting illegal activity, reporting to jury duty, filing a workers' compensation claim, or resisting sexual harassment.
In addition, retaliation can be unlawful if your employer has entered into a binding agreement not to retaliate against you if, for example, you utilize its open door policy. Most employers, however, try not to make unqualified legally enforceable promises like that to their employees.
9. Your boss must be fair with you.
There is no law that expressly says an employer must be fair with you. Therefore, with few exceptions, there is no law requiring your employer to be fair with you in making employment decisions that affect you.
10. Your employer must always choose the best qualified person.
There is no law that expressly requires an employer to hire the best qualified candidate for a position. Outside of some civil service constraints in the public sector, such as qualification lists for police and fire positions, there is no law barring employers from hiring unqualified candidates. (This may not be the wisest business decision, but it occurs frequently-think family members.)
