Democratic legislators are circulating a bill that would generally prohibit an employer, including the state, from discharging an employee unless the employer meets a seven-part test. One element of the test requires the employer prove by clear and convincing evidence that the employee committed a violation of work rules or performance standards that were uniformly enforced and properly noticed. The bill allows the terminated employee to sue the employer and then requires the employer to prove all seven tests were met.

Specifically, the bill considers it an actionable wrongful discharge of an employee (deemed “unfair” under the law) if any of the following applies:

1. The work rule or performance standard was not made known to the employee prior to the discharge.
2. The employer failed to enforce the work rule or performance standard in similar situations for a prolonged period.
3. The employer did not conduct an interview with the employee, or hold a hearing, concerning the violation prior to the discharge, did not conduct that interview or hearing promptly after the violation, or did not provide the employee with a precise description of the conduct constituting the violation.
4. The employer did not prove by clear and convincing evidence that the employee committed the violation.
5. The violation is the same as or substantially similar to a violation committed by another employee who was not discharged for committing the same or a substantially similar violation.
6. Unless the violation is egregious, the employer failed to first apply a less drastic form of discipline for the violation.
7. The discharge is disproportionate to the gravity of the violation, taking into consideration any mitigating or aggravating circumstances.