From the Archives: What ketchup on a hot dog can teach employers about at-will employment

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Image Credit: Frinkiac.com

Either way, it doesn’t belong on a hot dog. Ever.

That much hasn’t changed since I originally posted this last year.

Heck, if it were up to me, I’d fire anyone who put ketchup on a hot dog. It seems that would be consistent with the at-will employment doctrine. Under the at-will employment doctrine (not to be confused with “right to work”), if the employee doesn’t have a contract of employment for a specific term, that employee can be fired without just cause or warning.

(Indeed, Vince McMahon has “fired” his wrestlers for much less than ketchup on a hot dog.)

So, I can fire an employee for putting ketchup on a hot dog, right? Well, it depends…

  • It depends on whether the employee was putting ketchup on a hot dog at work or at home. Indeed, in some states like California, there are off-duty conduct laws which prohibit an employer from using legal off-the-clock behavior — like putting ketchup on a hot dog — as a basis to terminate employment.
  • It depends on whether the employee suffered an allergic reaction from the hot dog with ketchup that resulted in an overnight stay in the hospital. That employee may then have certain rights under the Family and Medical Leave Act.
  • It depends on whether a number of employees snuck in ketchup to protest the mustard-and-hot-dog-only working conditions the company imposed at work.  Firing employees who speak out about working conditions could violate the National Labor Relations Act.
  • It depends on whether a company fired 45-year-old hot-dog-with-ketchup eater only to replace him or her with a 25-year-old hot-dog-with-ketchup eater. That could create a claim under the Age Discrimination in Employment Act. *Hat tip to a reader for this one.
  • It depends on whether putting ketchup on a hotdog is a reasonable accommodation required to allow someone with a condiment-related disability — yes, I’m reaching here — to perform the essential functions of the job. In that case, a firing could violate the Americans with Disabilities Act.
  • It depends on whether the employee has a sincerely-held belief regarding ketchup on a hot dog. If allowing the employee to apply ketchup to a hot dog doesn’t create undue hardship for the employer, then the company may run into religious discrimination issues under Title VII.
  • It depends on whether an employee uses ketchup to fend of a workplace sexual harasser’s advances with a hot dog. That employee — really reaching here — could have a Title VII retaliation claim.
  • It depends on whether the employee first blew the whistle on reasonably-held public safety concerns about other condiments.  In some states, like New Jersey, that could lead to a whistleblower claim. Or maybe a First Amendment claim in the public sector. (And speaking of New Jersey, now that the Diane B. Allen Equal Pay Act has taken effect, paying a member of a protected class less for performing substantially-similar work to a co-worker, solely because that person puts ketchup on a hot dog would not be a good defense to an Allen Act equal pay claim.)
  • It depends on whether the employee is returning from military service. Even if that employee raves about the hot dogs with ketchup in Afghanistan, that employee may have an absolute right under USERRA to return to work.

So what can employers take away from this post-Independence Day post?

  1. There are many exceptions to at-will employment.
  2. Notwithstanding the bulleted list above, in most situations, you can fire an employee for putting ketchup on a hot dog.
  3. You’re not three years old. No hot dogs with ketchup.

“Doing What’s Right – Not Just What’s Legal”