THE "JUST CAUSE" PROTECTION

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Legal Status of Non-Union ("At-Will") Workers

In New York State, and in almost every other state, an employee, who does not have the protection of a contract, is classified with the legally inferior status "employee at will."

It is perfectly legal for such "at will" employees to be fired, or otherwise disciplined, unjustly, for almost any reason or even for no reason. Except in certain limited circumstances, "at will" workers have no right to challenge an unjust dismissal in court. In practical terms, "at will" means "non-union," because non-union workers do not enjoy the rights conferred by a union contract.

Legal Status of Unionized Workers (Covered By Contract)

By contrast, workers represented by our union can only be fired or disciplined if an employer has "just cause" to do so. Article 27(A)(1) of our Industry-Wide Agreement provides that the union has the right to challenge in arbitration "whether an employee's discharge or discipline was for just cause." This means that the employer has to be able to prove, to an impartial arbitrator, and through a fair process, that the employee deserved to be fired or disciplined. This is one of the most valuable and fundamental rights unionized workers enjoy.

The "Just Cause" Difference

The phrase "just cause" is a legal term of art, with a recognized meaning within the field of labor law. It is important for union delegates and members to understand this concept, in order to effectively enforce the special legal rights it gives them. The just cause standard prohibits management from giving warnings, suspending or terminating a worker, or imposing other discipline unless it can establish it has "just cause" to do so. For just cause to exist, management's stated reason for the discipline must have a substantial foundation and provide both a factually adequate and fair basis for the discipline.

Required Elements

To establish just cause, management's case must satisfy at least the following elements:

1. Proof
   Management must be able to prove that the employee actually engaged in the alleged misconduct. The more serious the offense charged, the more proof the hotel must have to support its charge.
   
   
2. Notice of rules and policies
   Management must previously have made the worker aware of the existence of the rule or policy s/he allegedly violated except in those rare cases where the alleged misconduct is so clearly wrong that no prior notice is required, for example, threatening coworkers with a loaded firearm, or theft.
   
   
3. Fair and reasonable rules and policies
   The rule or policy the worker allegedly violated must be reasonably related to the safe and efficient operation of the business of the hotel and must itself be reasonable.
   
   
4. Notice of consequences of violating rules and policies
   In addition to notice of the the existence of a rule, management must previously have made the worker aware of the consequences of engaging in the behavior for which the hotel seeks to discipline the worker, except in those rare cases where the alleged misconduct is so clearly wrong that no prior notice is required.
   
   
5. Consistent enforcement of the rule or policy
   Management must consistently have enforced the rule or policy allegedly violated and disciplined other workers who engaged in the same conduct.
   
   
6. Fair and thorough investigation
   Before imposing the discipline, management must have conducted a fair and thorough investigation into the alleged misconduct for which it seeks to penalize the worker. Before management makes any decision about whether to discipline a worker, the investigation it is required to conduct must have produced sufficient believable evidence that the worker did what management charged the worker with doing.
   
   
7. Progressive discipline
   Management must previously have afforded the worker the opportunity to correct his/her behavior while being subject to progressively more severe discipline (i.e. progressive discipline) unless the misconduct alleged is one of a limited number of clearly terminable offenses.
   
   
8. Reasonableness of the discipline
   The nature and severity of the discipline management selected must be reasonable under all of the relevant facts and circumstances.
   
   
9. Consideration of any mitigating circumstances
   In determining whether the discipline management selected is appropriate, any mitigating circumstances that exist must be considered, such as: did the worker have a good reason for doing what s/he did, or is s/he a long-term employee with a good record and deserving of a lesser discipline.
   
   
10. Equal treatment
    The nature and severity of the discipline must also be consistent with what management has sought to impose in like cases of misconduct.