Many states, like Massachusetts, are “at-will” states, which means employers are free to terminate employees for any reason or no reason, with or without cause or advance notice. But there’s a critical exception to the employment-at-will rule: an employee may not be terminated for any reason that’s forbidden by law.
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Managers and HR professionals are familiar with many such protections. Indeed, most of you know that you may not terminate employees on the basis of race, disability, gender, age, or any of the other classes protected under state and federal law. And most of you know you may not terminate employees in retaliation for exercising their protected rights, such as the right to oppose discriminatory practices, request certain types of leave, seek payment of earned wages, file a claim for workers’ compensation, or seek reasonable accommodations for disabling conditions. But state and federal law are filled with many other exceptions to the employment-at-will doctrine, some of which are unfamiliar to even the most experienced employment lawyers. Below is a list of the top 5 (in our opinion) obscure legal protections for employees.
#5: Immigration Status
Since 1986, the Immigration and Nationality Act (INA) has made it an “unfair immigration-related employment practice” for an employer with four or more employees to refuse to hire an applicant (or terminate a current employee) on the basis of his national origin or citizenship status as long as he is living in the United States legally. The law protects not just citizens, nationals, and lawful permanent residents but also lawful temporary residents and aliens who have been granted asylum or have been admitted into the United States as refugees, provided they timely pursue naturalization.
The INA also prohibits covered employers from intimidating, threatening, coercing, or retaliating against a protected individual for the purpose of interfering with her immigration-related employment rights or because she has taken any action to enforce them. Moreover, employers are barred from engaging in certain practices related to immigration-related documentation.
#4: Genetic Information
At-will employers are subject to the federal Genetic Information Nondiscrimination Act of 2008 (GINA). GINA makes it illegal for employers to discriminate against employees or job applicants because of genetic information. More specifically, the statute prohibits employers from considering genetic information in making employment decisions; restricts employers and other covered entities from requesting, requiring, or purchasing genetic information; and strictly limits the disclosure of that information.
While most employers are aware that genetic information is among the list of protected classes in at-will states, many do not realize just how much information is encompassed by that term. Indeed, “genetic information” broadly covers any information that can be ascertained from an individual’s (or her family members’) genetic tests; any information about the manifestation of a disease or disorder in an individual’s family members (i.e., her family medical history); an individual’s request for, or receipt of, genetic services; an individual’s or a family member’s participation in clinical research that includes genetic services; the genetic information of a fetus carried by an individual or her family member; and the genetic information of any embryo legally held by the individual or a family member using an assisted reproductive technology. In fact, employers are not even allowed to acquire genetic information except for specific purposes.
You may be wondering how or why an employer would discriminate against an employee on the basis of genetic information. Consider an employer that learns an applicant carries the BRCA gene, making it more likely she will develop breast cancer, or that her father has been diagnosed with Alzheimer’s disease. Fearing the applicant may develop those illnesses, require costly medical care, and need time off work, the employer decides not to hire her. Basing that adverse action on the applicant’s genetic information is illegal under GINA.
#3: Association Discrimination
Federal, as well as many State laws prohibit discrimination against employees on the basis of their association with individuals who have disabilities. For example, an employer may not take adverse action against an employee because it fears that his relationship with a disabled individual will cause it to incur some cost (e.g., through increased healthcare premiums), that the employee also is or may become disabled as a result of the relationship (e.g., because the disability is communicable), or that the relationship will interfere with the employee’s job responsibilities (e.g., because he is a caregiver).
But an association with a disabled person isn’t the only basis for an association discrimination claim. Indeed, courts and administrative agencies across the country are increasingly recognizing association discrimination claims based on other protected statuses, like race and religion, extending the protections of Title VII of the Civil Rights Act of 1964 and their state counterparts to employees who are denied jobs, fired, or otherwise discriminated against based on the protected status of their spouse or another family member. Courts have also recognized association discrimination claims based on less formal associations, such as a connection with an advocacy group devoted to promoting gay rights and even a simple friendship.
#2: Interference With Employee Benefits
The federal Employee Retirement Income Security Act (ERISA) prohibits employers from discriminating against anyone who is a participant or a beneficiary in an employee benefit plan on the basis of his exercise of any right he has under the plan or under ERISA, or for the purpose of interfering with his attainment of any such right. Put more simply, you may not retaliate against employees for taking or using their benefits under covered retirement and welfare plans, you may not retaliate against employees who exercise statutory rights related to such benefits, and you may not interfere with their efforts to take or use the benefits.
For those of you wondering whether your benefit plans are covered by ERISA, the answer is usually yes. Any employee benefit scheme will be deemed an ERISA-covered “plan” if it is a plan, fund, or program established or maintained by an employer or an employee organization for the purpose of providing retirement or welfare benefits to participants or their beneficiaries. A formal written plan isn’t even required—courts will find that a covered plan exists if a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and the procedures for receiving benefits and if the employer has at least some minimal ongoing administrative involvement.
Of course, there are statutory exemptions and other legal nuances involved, but by and large, you should think carefully before taking any adverse action against an employee for anything she did that’s related to an employee benefit.
#1: Discrimination Based on Votes and Political Contributions
And last but certainly not least, states like Massachusetts prohibit employers from using the terms and conditions of employment to influence or attempt to influence a voter to give or withhold a vote or a political contribution. For example, you cannot threaten to terminate someone’s employment if he votes against a proposal your company supports, reduce his wages for giving donations to a prounion candidate for public office, or promise to give him a bigger office if he contributes to a certain political action committee.
Bottom Line
It’s tough to keep up! Achieving 100% compliance with every applicable employment law is a nearly impossible task. The law itself changes constantly—new laws are passed, old laws are repealed, and every day, judges issue new decisions that change the way even long-standing laws are interpreted and applied. Under those circumstances, it isn’t surprising that employers often focus their compliance efforts on common forms of illegal discrimination, harassment, and retaliation and overlook more obscure laws that can have equally painful consequences. Do yourself a favor and spend a few minutes each week educating yourself. When management later asks if employees can be prohibited from donating to certain political campaigns, you’ll be glad you know the answer.
Erica E. Flores is an Attorney at the firm of Skoler, Abbott & Presser, P.C. and is an Editor for the Massachusetts Employment Law Letter. She can be reached at eflores@skoler-abbott.com.