Burning Question on At Will Employees and the Need for Just Cause

Today’s burning question: Several of my chief officers persist in asking why we can’t simply fire firefighters who are at-will employees. I have attempted to explain that termination without some basis (not necessarily just cause, but some justifiable legal basis) isn’t wise. They don’t seem to grasp what I tell them. Can you add anything that I can share with them to further my position?

Answer: Chief, I answered a very similar question for Lexipol a while back in the context of firing probationary employees who are at-will. Here is the link to that article: https://www.lexipol.com/resources/blog/probationary-firefighters-can-be-fired-without-cause-with-4-important-exceptions/.

Let me get to the politically incorrect bottom line that may help your chiefs grasp what they seem to be missing: you can fire white male non-protected class employees who are “at will” for no reason what-so-ever – and more than likely they will not have a legal basis to contest the firing. The Lexipol article lists some of the exceptions where non-protected class employees may have grounds to challenge the discipline (whistleblower, retaliation for exercising First Amendment rights, etc.), but absent one of those grounds, they will have no recourse.

However, fire a protected class member (race, gender, gender identity, religion, military service, age, disability, perceived disability) for no reason and you will lose. In fact, you are in an untenable – unwinnable position. Firing a protected class member for no reason has all the hallmarks of illegal discrimination. If you did not do an investigation (because they were at-will and you do not need to investigate before firing at-will employees), and you did not establish that you had just cause (again because they were at-will), then how do you defend the decision to fire the protected class member?

For the Legal Eagles out there, we are talking about the McDonnell Douglas Burden-Shifting Framework that is applied in disparate treatment discrimination claims, such as would be filed by a protected class member who is fired for no reason. Once the fired employee establishes he/she is a member of a protected class and has been fired, the burden shifts to the employer to establish a legitimate, non-discriminatory reason for the termination. (BTW… saying “Because I can fire at will employees whenever I want” is not going to fly as a legitimate, non-discriminatory reason).

If the employer (1) did not do an investigation and (2) did not establish just cause (or some legal basis) to fire the employee, the employer will lose the case on a motion for summary judgment right there, no need for a trial… no need for step 3 in the McDonnell Douglas Burden-Shifting.

So the question to your chief officers is: do they want the department to have two ways of disciplining/firing at-will employees… one for white male non-protected class members (no investigation, no requirement of just cause) and another for protected class members (investigation and just cause required to avoid a sure loss in federal court), or just one? Said another way, perhaps they should just listen to you and treat everyone fairly… even though technically you do not have to. My advice – do things the right way… treat your employees fairly. Only fire people after an investigation and a determination that the department has just cause.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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