In the previous edition of this magazine (CG #151, November–December 2010) we read about the progress of the Domestic Fair Trade Association in establishing principles for domestic fair trade. While the DFTA is not itself a certifier, one of the major players in the association, the Agricultural Justice Project (AJP), recently debuted its new Food Justice Certified label.
Food Justice certification sets standards for food business responsibilities to farmers, farmer responsibilities to buyers, farmer responsibilities to employees, food business responsibilities to employees, and grower group responsibilities.
As with organic certification, some co-ops may simply promote and sell Food Justice Certified products in their stores while others may choose to become certified organizations themselves. For those contemplating certification, a potential sticking point is the requirement that employers terminate for cause only and give up the status of being employers at will.
From: Agricultural Justice Project’s standards for Food Justice Certified
4.0 Food Business Responsibilities to Employees and 4.1.13. Termination
a. No worker will be disciplined or terminated without just cause. The enterprise has a documented disciplinary procedure with a system of warnings before any dismissal, and employees must be given full details on why they are being dismissed.
g. In the case of food businesses that have at-will status, employers must eliminate at-will status within two years of initially applying for certification. Even during this transition period, employers will abide by all employee policies and personnel manual provisions and discharge employees only for just cause. (Emphasis added.)
At-will employment defined
The legal doctrine of employment at will holds that, in the absence of a contract that specifies otherwise, both employer and employee can end the employment relationship at any time for any reason that is not in violation of a law. Employees working under a contract, such as a labor agreement, are not at-will employees and may only be terminated for cause as defined in the contract. For co-ops with unions, at-will is still an issue for employees outside the bargaining unit.
Critics of the at-will doctrine point out that employer and employee are not truly equal parties in this relationship. In terms of the financial impact of losing a job, certainly the individual employee is at a disadvantage when employment is at will. At the same time, employees really do have the right to walk away from a job without notice or consequence, while employers have some significant limits on their absolute right to take that job away.
First of all, employers can’t violate other laws when terminating workers. For example, an employer may not fire someone on the basis of that person’s sex, race, age, religion, national origin, mental or physical disability, marital status, veteran’s status or, in some jurisdictions, sexual orientation. Nor may an employer fire someone for exercising her legal rights, such as filing a workers’ compensation claim, filing a claim of discrimination or harassment with the EEOC, or trying to organize a union. Employers may not fire an employee for refusing to carry out an illegal act. Whistleblower laws protect employees who claim their company is breaking a law.
In some wrongful discharge lawsuits, courts have accepted “the handbook exception” in allowing a case to go to trial. In these cases, the company’s employee handbook, while containing a disclaimer of employment at-will, also contained provisions for progressive disciplinary action that the employer did not follow when terminating the plaintiff. The plaintiff asserted that he was forced to enter into a unilateral contract in which he was expected to follow the rules in the handbook, while his employer didn’t have to. Few such lawsuits are successful in the end, but they are yet another limitation on employment at will.
In spite of the many exceptions to this doctrine, co-ops that retain attorneys routinely are advised to state that they are employers at will in their employee handbooks (personnel policy manuals) and to require all employees to sign statements acknowledging the at-will relationship. This legal advice is based on the belief that being an at-will employer still deters lawsuits for wrongful discharge.
As with any deterrent, its efficacy is hard to prove; but the stakes are high. Attorneys seek to protect their co-op clients from getting involved in lawsuits that could force the co-op to demonstrate to a jury that management had cause to fire and took all the appropriate steps before resorting to termination. Such a lawsuit, even if the co-op wins, would be extremely costly—so costly that most companies without deep pockets choose to pay out a settlement to the plaintiff rather than attempt to prove their innocence.
To protect the owners’ assets, some co-op boards have adopted policies like those from the Cooperative Board Leadership Development template.
From: Cooperative Board Leadership Development’s policy register template
The general manager (GM) shall not allow assets to be unprotected, unreasonably risked, or inadequately maintained.
The GM will not:
2. Allow unnecessary exposure to liability or lack of insurance protection from claims of liability.
The GM will not treat staff in any way that is unfair, unsafe, or unclear.
The GM will not:
1. Operate without written personnel policies that:
…d. Inform staff that employment is neither permanent nor guaranteed.
Protection of the members’ assets is one reason why Sean Doyle, general manager of Seward Co-op Grocery & Deli in Minneapolis, has chosen not to pursue the AJP’s Food Justice certification. “At-will is about individual rights,” he explains. “The main issue in fair trade is concentration of wealth in the hands of a few. In a co-op, profit is democratized. The impact of a frivolous lawsuit could harm others.”
The same motivation drives Jim DeLuca, general manager of Abundance Cooperative Market in Rochester, N.Y. “As a manager, I feel responsible to think about the co-op as a whole. I don’t care for the