ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, November 10, 1996 TAG: 9611080041
SECTION: BUSINESS PAGE: 3 EDITION: METRO
COLUMN: WORKING IT OUT
SOURCE: CAMILLE WRIGHT MILLER
Q: I work for my husband, who is company president and major stockholder in the corporation. My husband's partners, who are officers in the corporation, are causing considerable problems. The problems stem, in part, from the fact the partners and officers are my husband's former in-laws. They want me fired so they can hire someone younger - for less money. They've also hired an attorney to remove my husband. Can we sue for illegal dismissal if they're successful in their efforts?
A: Alexander Boone, an attorney with The Center for Employment Law, which specializes in representing management in labor and employment issues, recommends first determining whether the business is a partnership or a corporation.
Boone notes that "the distinction will be an important consideration if your husband wishes to pursue an action against the business in the event he is removed as president."
With corporation status, "the shareholders and officers may remove the president with or without cause in accordance with the bylaws of the corporation." In this case, your husband "probably would not have a viable cause of action against the corporation unless he had an employment contract."
If the business is a partnership and your husband can prove the things you've alleged, Boone says, "he may have a cause of action for breach of fiduciary duty."
In either case, your husband needs to work with a lawyer to have his interests protected.
Consider talking to an attorney about your own situation. In your case, Boone says "Virginia strongly adheres to the employment-at- will doctrine, which provides that, in the absence of a contract, either employer or employee may terminate the employment relationship without cause with reasonable notice to the other party."
Boone notes you are "employed at will and may be discharged with or without cause. Your employer is free to discharge you, with no resulting liability, unless you are able to demonstrate your inclusion in a protected category under state or federal law, or able to point to a public policy under Virginia law that your employer violated when you are discharged."
Boone, referring to the Virginia Human Rights Act, says it "provides that no employer employing more than five but less than 15 persons shall discharge any employee on the basis of his or her race, color, religion, national origin, or sex or age, if over the age of 40."
According to Boone, to bring suit in state court under the act, you must demonstrate you were "discharged on the basis of your status as a person included in one of the protected categories."
Boone says you may have a "cause of action" under two federal laws. You may be able to "bring a cause of action under Title VII, which protects persons from discrimination in employment on the basis of race, color, religion, sex, and national origin." If you're over 40 and discharged so the company can hire someone younger and "cheaper," you may "be able to assert a claim for age discrimination under the Age Discrimination in Employment Act (ADEA),"
For both Title Vll and ADEA there are additional requirements beyond your status. Boone says "Title VII claims are only available against employers that have employed 15 or more employees in each of 20 weeks in the present or preceding year. ADEA claims are only available against employers who have employed 20 or more employees in each of 20 weeks in the present or preceding year."
Boone also notes that "a prerequisite to filing either a Title VII or ADEA claim is to file a charge with the Equal Employment Opportunity Commission. The EEOC would then have to issue a right-to-sue letter, which gives the right to sue your employer in a federal district court."
You and your husband would benefit from talking with an attorney. Whether you have a case, you would be fully informed on your rights under state and federal law.
If you and your husband survive the efforts of former family members to oust you both, family business counseling is the next step. Businesses involving family members often benefit from working with a neutral outside party that can keep the focus on business while minimizing family hostilities.
Camille Wright Miller, an organizational behavior sociologist who works in Lexington, answers questions from our readers about workplace issues. Please send them to her in care of The Roanoke Times, Business News Department, P.O. Box 2491, Roanoke 24010.
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