Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at firstname.lastname@example.org.
My department’s policy says probationary members can be fired without notice (including a personnel complaint process) or cause. But if a probationary firefighter alleges they are being fired as a result of gender or racial discrimination, can they successfully bring a lawsuit?
Being a probationary employee in most fire departments means you are an “at-will” employee. At will employees can be terminated at any time for any reason or no reason. As such, the normal requirements for due process (notice, a right to a hearing, and a finding of just cause) would not apply. However, the ability of a public employer to terminate at will and/or probationary employees is subject to a several important exceptions.
The most obvious exception is the one you raise: discrimination. An at-will or probationary employee cannot be discharged on account of their race, religion, gender, age, disability or other protected class. This can create a de facto requirement for just cause because terminating a protected class member without just cause has all the hallmarks of illegal discrimination.
In addition, if the stated reason for the firing is insufficient to warrant termination, and/or the protected class member can point to similarly situated white male probationary employees who engaged in similar conduct who were not terminated, the department will likely lose the discrimination case.
The next exception would be firing an at-will public employee for exercising a Constitutional right. For example, terminating a firefighter for expressing his political beliefs, such as supporting a certain candidate for office or supporting certain legislation while off duty, can be a violation of the First Amendment. Assuming the at-will or probationary employee can connect the termination to his exercise of his free speech rights, the fire department will not be able to simply fire him for no reason.
Third, many laws contain anti-retaliation provisions that may come into play with at will or probationary employees. For example, the Fair Labor Standards Act (FLSA) contains an anti-retaliation provision. It would be illegal to terminate a probationary employee for complaining about his/her pay being in violation of the FLSA. Something to remember about anti-retaliation provisions: even mistaken complaints are protected. Thus, if a probationary employee mistakenly complains that her pay is less that what the FLSA requires, she is still protected from retaliation and cannot be disciplined or discharged.
Finally, closely related to retaliation are whistleblower laws. Whistleblower laws protect those who report a prescribed type of illegal conduct to proper authorities. While a form of anti-retaliation laws, whistleblower laws would serve to protect an at-will or probationary employee if their termination followed their reporting of the illegal conduct covered by the law.
Thus, while in theory probationary employees have no recourse in challenging a termination, the reality is they have a broad range of options at their disposal. Fire departments need to ensure their policies, procedures and practices address those exceptions.