Alaska Employment Law

Inferences from use of “probationary” label:  A recent post in Connecticut Employment Law discusses a D.Conn. opinion, based on state law, that sends to the jury the question of whether an employer’s use of the term “probationary at-will employment,” in combination with other factors (a promise of a performance review at the end of the probationary period, and a statement of the employer’s right to fire the employee for violations of various standards),  creates an inference that post-probationary employment is subject to a just cause standard.  The District Court judge stated:

it is not at all clear what the Handbook promised the Inn’s employees. For example, does the use of the term “Probationary-At-Will Period” imply that after 90 days an employee is no longer at will? It is undisputed that Mr. Defontes worked at the Inn for more than 90 days. Did he then become something other than an at-will employee? Was he, at a minimum, entitled to a performance review before termination? It is undisputed that Mr. Defontes was summarily fired without any explanation of the reasons for his termination or whether his performance was inadequate in any way. Given the ambiguity of the Handbook language (coupled with the fact that no party has provided the Court with any evidence regarding the Inn’s course of performance under it), the question of whether the Handbook gives rise to an implied promise that after 90 days employment will not be terminated without cause, is one for a jury, not this Court.

AEL comment (modified 12/06/07): Many “at will” employers in Alaska use “probationary” periods.  Both the employer and the employees typically understand the standards in the probationary period and the period that follows it to be substantively different.  The difference may be reflected in the parties’ course of conduct - the employer almost certainly takes greater care in investigating reported work violations by post-probationary employees than by probationary employees, say.  Thus, there is some inference that arises from using the label “probationary,” not only when the succeeding period expressly carries the label “regular,”  ”permanent,” or “just cause,” but even when it continues to carry the label “at will.”  The inference of heightened job security in the later period may be a weak one, but the law shouldn’t entirely ignore it - because the parties themselves respect it.  

Moreover, job security isn’t simply all-or-nothing.  At-will and just cause employment aren’t the only categories of employment security, but the far markers on a continuum that includes an infinite number of ways to balance employee security and employer freedom.  Course of performance and industry practice are the tools to introduce the real rules that actually govern any particular place of employment.  Many nominally “at will” employees have broader job security than first appears, if practitioners would look beyond the formal rules to the employers’ actual practice.  Only a particularly disciplined and cold-hearted ”at-will” employer will be able to create a defensible record of routinely ignoring the indicia of just cause employment, like careful investigation before discipline, attempts to show job-relatedness for discipline, etc.

“Me Too” evidence:  The U. S. Supreme Court heard oral argument in Sprint/United Management v. Mendelsohn on Monday of this week.  The oral argument transcript is here.  Analysis and tea-leaf reading may be found at Workplace Professor and Daily Developments in EEO Law.

Defective appellate briefs: Kevin Underhill at Lowering the Bar (”Legal Humor.  Seriously.”) discusses the recent opinion in Sekiya v. Gates, 2007 WL 4198172 (9th Cir. Nov. 29,  2007), about the consequences of ignoring the Appellate Rules, and also comes up with a different and maybe better etymology for “slubby mass” than I did last week.