Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump’s cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show.

When I’ve asked people – especially my students – why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many ‘Apprentice’ watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal.

Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

(N.B. For the extended version of this blog post, see my op-ed “Reality at Work,” LEGAL TIMES, Oct. 31, 2005).

(Photo Credit: Trump PR shot from Wikipedia)

You may also like...

19 Responses

  1. annegb says:

    I’ve thought the same thing, but I thought it was because I didn’t like Donald Trump.

  2. Mike says:

    While it’s clearly the law that a person can be fired without warning and for no good cause, in practice, it’s rare that a person is fired for no cause, and is not first given a warning. Indeed, a common complaint my friends working in corporations make is that it’s too hard (because of corporate police) to fire an inept employee.

  3. Daniel Millstone says:

    Perhaps it is time to reconsider the employment- at-will doctrine. It rests in large measure on the idea (fiction, in my view) that employer and employee are arms-length negotiators. In almost all cases the employee has no leverage in the bargaining.

    In the past, collective bargaining offered employees the redress of the “common law of the shop.” With the decline in union representation, employers have the freedom to treat employees less fairly. We should consider extending to employees the same fairness rights that have been gvien to consumers. While those are limited in nature (We all know how hard it is ever to get those mail-in rebates.), they provide some chance of redress.

  4. Simon says:

    I would have thought that the lost productivity of replacing an employee would provide employers with a strong motive to not fire employees indiscriminately. The at-will system may not be ideal, but what is the alternative?

  5. Stuart says:

    As a practical matter, employment is not at will because there is such a plethora of exceptions (such as anti-discrimination or hostile environment rules) that every employee can claim some sort of protective rule was violated by his/her firing. So an employer has to keep good records of the employee’s performance, number of warnings, etc etc etc.

    As a business matter, apart from the legal issues, an employer who fires people for no reason at all is an idiot. Finding good people is very , very hard, and once someone is on board it will almost always make far more sense to work with that person to solve whatever issues s/he has than to fire and start over again with the devil you don’t know. Firing people is an extremely unpleasant experience. I’m a partner in a small law firm, and I have had to do it, so I can tell you it’s the single worst part of the job.

  6. Chris says:

    Daniel, your view that employees have no power during negotiation is pretty far off base. Frequently employees that find another job get counter-offers and other incentives to stay – if they are a valued employee.

    If you are just a cog, do what your told and offer no value-add then of course you are going to have no power because you don’t have anything that the employer wants.

    I’m assuming by the post (and I oculd be wrong) that Miriam thinks that the current situation should be fixed – but if there isn’t a problem why would we impose heavy-handed government regulation on labor flexibility. This flexibility is, arguably, one of the strongest attributes of the American economy – fixing problems that don’t exist doesn’t seem to make much sense.

  7. Simon says:

    if there isn’t a problem why would we impose heavy-handed government regulation on labor flexibility.

    And, moreover, even if there is a problem, one has to wonder if (and if so, how far) the imposition of government regulation (heavy handed or otherwise) is the appropriate remedy.

  8. Scott Moss says:

    “I would have thought that the lost productivity of replacing an employee would provide employers with a strong motive to not fire employees indiscriminately.”

    Absolutely, it’s economically irrational for employers to fire indiscriminately. But it happens; employers, like any other people or institutions, do dumb and irrational things all the time.

  9. Scott Moss says:

    “in practice, it’s rare that a person is fired for no cause, and is not first given a warning. Indeed, a common complaint my friends working in corporations make is that it’s too hard (because of corporate police) to fire an inept employee.”

    That’s certainly true in some but not all workplaces. Many employers (likely a minority) do have a quick trigger for firing employees.

    It’s possible — heck, even likely — that the majoprity of employers are more like what you describe. There’s a great law review article by Jesse Rudy in Berkeley’s Labor/Employment Journal(circa 2001) about how even though we’re in an employment-at-will legal regime, there’s a “social norm” of “no firing w/o cause.” But as I argue in an article coming out soon in U. Pittsburgh Law Review, that’d be a very difficult-to-enforce norm, so there’s little basis for assuming it’s anything close to universal or enforceable.

    If a nontrivial minority of employers do have a quick trigger finger, isn’t that enough to be a serious social problem, given the economic, personal, and family toll that getting fired — especially getting fired unjustly — can take? Many of the laws we enact redress social problems affecting 10% or 5% or 0.001% of the population…

  10. Paul Gowder says:

    Also, in low-skill jobs, it’s not nearly so hard to replace people. For example, many factory/manual jobs have “point systems” where if you’re five minutes late three times in one year, insta-firing. Now, that’s a firing “for a reason” (albeit pointless stupid reason) but the point is that employers view it as economically rational to do so because the replacement cost is much lower than it is for, e.g., computer programmers.

  11. I’m with Simon – what’s the (non-draconian)alternative.

    From a practical standpoint, though, most business’ of any decent size document and re-document the reasons for any firings because of the fear of a discrimination-based lawsuit. The cost to the business of this is significant, in no small part because the busines continues to employ someone who obviously isn’t cutting it. I think most of us have experienced this somewhat – if only from observing a professor previously tenured for no apparent reason.

    Getting the government involved even more – a favorite ploy of do-gooder lawyers looking to make some serious coin – will only make business look more like the civil service, which I’m sure is everyone’s model for the way to run a business.

  12. Chris says:

    Scott – If the solution is to impose strict labor laws and the result is less flexibility in the work force (harder to get fired, harder to get hired, harder to change careers, higher unemployment, damage to small companies) then what has been gained?

    There are already anti-discrimination laws so if employers routinely fire minorities without cause there is an avenue for redress so I don’t think you actually solve anything.

  13. David Meyers says:

    Employers have hundreds of reasons and they don’t have to be logical. They have a son/daughter/nephew/churchman/fellow cultist…. they want to put into your job. The new boss doesn’t like men/women/ good or bad lookers, jews, catholics, chinese, wasps, skinny people, whites, smarter/ sharper people. Too old/too young/skinny or fat. People who went to Harvard, Southwestern. Do you really think it matters? There doesn’t have to be a reason. He/she may just feel that you are a threat. A onetime manager of mine told me not to be too logical. Decisions are often made without any logic. Didn’t you ever have a real job? Haven’t you ever been fired? Snap out of it!

  14. Steven D. Terry says:

    I was recently fired from a Window and Door distributor, for no more of a cause than a “personality conflict” with a managing partner ( 1 of 3). He was also their top salesman. He was a very good salesman, but a terrible GM. A very codependant, emotional type, of micromanager. He was also a very poor communicator. We just butted heads. There was no training or much indoctrination to understand their business approach.

    I was hired to straighten out some proceedural problems and to instill some business processes that were not in place before I started to work for them. I had done this same type of job for 10 years at my previous employer so I knew I could do the job. After the interview, they wanted me there ASAP. I gave my former employer 3 weeks notice. I had wanted time to sell my home and move my family w/ me, but this new employer wanted me in NM earlier than that, so I complied, leaving my family back in MI to sell our home. After getting there, after only one month it was obvious to me that they had higher expectations than was displayed to me in the interviews, plus I was not give the power or the support to instill these processes( micro management). I was there for 9 weeks total before they let me go. We had agreed in the initial interview process that it would take me 9-18 months to accomplish what was needed to correct the problems they hired me for. I then would move into full time sales. I was given less than 9 weeks, and accused of misrepresenting myself when they let me go. I received no severance pay, so I applied for unemployment. They are now fighting my UI Benefits. I am fighting back.

    AS David responded, I may have been a threat to the managing partner, whose business decisions were sometimes a compromise at best, being their top salesman. A sort of conflict of interest.

    Any insight would be greatly appreciated. I do not really want to sue, but this situation has tapped our family savings and for 2 months now, I am still looking for employment to continue the lifestyle we were accustomed to. A provisional lifestyle, by no means extravigant. I am currently working in construction to pay the bills, while continuing to pursue a sales or management job.

    Thanks, Steve Terry

  15. mike says:

    I was terminated from my job today, and after asking for what reason, was told, “were not going to go into it”. I had just started with the company about 2 months prior, was never late, never missed work, and always maintained a good attitude. I knew about their “at will employment” policy, but didnt think that would be me! I dont know much about it, but it seems to me, thats just a cop out, a reason for employers to fire someone, even when they dont have a good reason! ooops, our mistake, we didnt provide the proper training to you and shouldnt have hired you, oh well, bye bye. I’ve always given employers notice when i inteded to leave, i think the “at will employment” policy is inconsiderate and un-professional

  16. cathy williams says:

    I was hired 10 days back ( “at -will”) . It was supposed to be an internship but the process was the same as of a regular associate. 2 days back I told my manage that I would need a 3 week vacation in december as I had some family obligations to meet after my father’s recent death. And the nextthing i know is that I was fired the next day. Reasons quoted: I was late 2 days by 10 minutes , she doesnt see me performing well in the position in the long run and if she has to replace me in december, she might as well hire someone else now.

    I told her I would go ahead and cancel my vacation plan as I did not know it was totally unfeasible for her but she did not listen and just told me that I can leave.

    I am infuriated. Can anyone tell me if I can file a law suit here ?

  17. Chris says:

    From what I’ve been reading lately , and employer can’t fire an employee for a personal leave of absence request specially for a such a case as yours…I would go ahead and ask a lawyer for advise. So you can bring this biatch down.

  18. cathy says:

    Thnks Cris…this feels better. I’m from UK so on student visa though i do have work authorization til i get my US citizenship few years from now. I am only worried as to how my school would react to this action. Also do people sue say even after 1 year of such a happening or is it considered too late

  19. Miriam Cherry says:

    Chris isn’t a lawyer, although it was nice of him to express his sympahty. And, while this website doesn’t provide legal advice (which is what Cathy seems to be asking for), and which I’m not going to give, let me make a few observations:

    I’d suggest you go back and read the main part of my blog post. It describes how, in the US, employers have a wide latitude to fire employees (the at will rule). Subject to certain state and federal restrictions, an employer can fire an employee for a good, bad, or no reason at all. My blog post was critical of the rule, but that is the law.

    Applying the at will rule, that means they can fire you for coming in ten minutes late (sorry). From what you said, though, it also seems like you were fired for asking for leave time to deal with a death in the family. Ordinarily, I’d think of the Family and Medical Leave Act. But there are problems: it only covers your own illness or a family member’s illness (not death); applies to you if the employer you worked for was fairly large; and here’s the critical part, you were on the job for one year or more. You were there ten days. Not sounding too good.

    So, you supervisor may be a “biatch” indeed, but the legal system doesn’t provide remedies for all the bad, annoying, unfortunately things that happen to us. Consulting an attorney is an option, but most plaintiff’s employment lawyers work on contingency and want a case that is a clear winner. (Of course, here may be other facts here that could make a difference). But … It’s probably easier to find another job, and arrange the time off before starting (as part of the hiring negotiation).

    Note to other readers:

    This interchange is *exactly* what Pauline Kim was talking about when she documented that most workers don’t understand the at will rule.

    We just saw it demonstrated right here!