Employee Discipline: Wyoming
Federal law and guidance on this subject should be reviewed together with this section.
Author: Vonde Smith, Law Offices of Vonde M. Smith, PC
- In Wyoming, discipline under an express employment contract should follow the terms of the contract. See Express Contracts.
- Termination of an employee working under an implied contract must be in strict compliance with the written and oral policies and procedures of the employer that form the basis of the implied contract. See Implied Contracts.
- Negative communications about former employees should be fully supported by information in the personnel file to prevent defamation or libel claims. See Defamation and Libel.
- In Wyoming it is illegal to intercept or procure a wire, electronic or telephonic communication unless one party has given consent or unless the communication is being used in furtherance of wrongful or criminal activity. See Recording Meetings.
- An employer does not have implied consent to drug test at-will employees in the absence of an express policy and practice of drug testing that is communicated to the employee. See Drug Testing.
- Discrimination can give rise to court claims as well as administrative remedies through the Wyoming Department of Workforce Services' Labor Standards Office, which is the state equivalent of the federal Equal Employment Opportunities Commission (EEOC). See Discrimination Claims.
- A number of Wyoming statutes contain anti-retaliation provisions. See Whistleblower and Retaliation Protections.
- Termination for collection of workers' compensation benefits violates public policy and, therefore, gives rise to a court claim. See Discharge Contrary to Public Policy.
Discipline under an express employment contract should follow the terms of the contract. If the contract is silent regarding employee discipline, care should be used to document the reason for discipline, the investigation regarding the conduct giving rise to the discipline, the employee's response and outlining the duration of the discipline and ramifications of future misconduct.
Termination of an employee working under an implied contract must be in strict compliance with the written and oral policies and procedures of the employer that form the basis of the implied contract.
In Wyoming, an at-will employee who claims wrongful termination as a result of an implied contract may seek remedies in court for the following claims:
- Breach of the implied covenant of good faith and fair dealing;
- Intentional infliction of emotional distress; and
- Discharge contrary to the public policy of Wyoming.
See Jewell v. North Big Horn Hosp. Dist. by & Through Board of Trustees, +953 P.2d 135, 139 (Wyo. 1998).
Defamation and Libel
Wyoming recognizes civil claims for defamation and libel. A defamatory communication is one which tends:
- To hold a person up to hatred, contempt, ridicule or scorn or which causes him or her to be shunned or avoided; or
- To injure his or her reputation as to diminish the esteem, respect, goodwill or confidence in which he or she is held.
If the defamation is put in writing, it is considered libel.
Negative communications about former employees should be fully supported by information in the personnel file to prevent defamation or libel claims. Truthful negative communications are not defamation or libel.
In Wyoming it is illegal to intercept or procure a wire, electronic or telephone communication unless one party has given consent or unless the communication is being used in furtherance of wrongful or criminal activity. +Wyo. Stat. § 7-3-702.
Additionally, Wyoming law provides for criminal penalties and imprisonment for not more than five years for statutory violations. +Wyo. Stat § 7-3-702(f).
Policies relating to electronic communication at work, personal telephone, email, pager or other mobile devices should be explicitly documented to ensure that employers maintain adequate control over the work environment.Wyoming has specific laws prohibiting eavesdropping on phone or email conversations, but does not have laws regulating employer management of communications at work. Implementation of specific polices will ensure that employers safeguard against impermissible or excessive use of outside communications at work.
An employer does not have implied consent to drug test at-will employees in the absence of an express policy and practice of drug testing that is communicated to the employee. See Employment Sec. Comm'n v. Western Gas Processors, +786 P.2d 866 (Wyo. 1990).
Therefore, an employer who wishes to confirm employee drug use by testing should include its intention in the employee handbook, as well as provide a procedure relating to drug testing. In this way, employers may minimize employee invasion of privacy claims. In addition, employers should note that Wyoming courts have recognized the claim of negligent drug testing. See Duncan v. Afton, Inc., +991 P.2d 739 (Wyo. 1999).
Discrimination can give rise to court claims as well as administrative remedies through the Wyoming Department of Workforce Services' Labor Standards Office, which is the state equivalent of the federal Equal Employment Opportunities Commission (EEOC).
Employees protected by antidiscrimination laws cannot be fired or disciplined on the basis of a protected characteristic. Independent, lawful reasons must exist.
Where a nondiscriminatory cause for termination exists, meticulous documentation of the employment relationship, the reasons for termination and, where possible, the opportunity for the employee to correct the problem, will create insulation from potential claims of discrimination.
Discrimination charges are required to be first filed with the Wyoming Department of Workforce Services' Labor Standards Office. See, Employee Management > EEO-Discrimination: Wyoming. Employees claiming improper discrimination in violation of Wyoming law must first exhaust the administrative remedies outlined in the Wyoming Fair Employment Practices Act prior to proceeding with a court claim.+Wyo. Stat. § 27-9-101et seq.
Where the administrative hearing officer determines that the employer, employment agency or labor organization has engaged in any discriminatory or unfair employment practice as defined by Wyoming law, the hearing officer's decision may:
- Require the employer, employment agency or labor organization to cease and desist from the discriminatory or unfair practice;
- Require remedial action which may include hiring, retaining, reinstating or upgrading of employees, referring of applications for employment by a respondent employment agency or the restoration to membership by a respondent labor organization;
- Require the posting of notices, the making of reports as to the manner of compliance and any other relief that the hearing officer deems necessary and appropriate to make the complainant whole; or
- Require the employer, employment agency or labor organization to pay backpay or front pay.
Employers should use extreme caution when disciplining employees for the following activities:
- Voting. +Wyo. Stat. § 22-2-111;
- Jury Duty. +Wyo. Stat. §1-11-401;
- Witness Duty. +Wyo. Stat. §1-40-209;
- Responding to a subpoena;
- Being the subject of garnishment proceedings, including those related to child support;
- Reporting labor and employment law violations, including:
- Equal pay violations;
- Safety and health violations;
- Workers' compensation noncompliance;
- Unemployment compensation noncompliance; and
- Requesting or taking military leave. +Wyo. Stat. § 19-11-111 et seq.
Employers may face liability under Wyoming whistleblower and employee retaliation protections for engaging in the discipline of these activities.
Whistleblower and Retaliation Protections
A number of Wyoming statutes contain anti-retaliation provisions. These include the following:
- State agencies may not retaliate against an employee for reporting illegal waste by the government. +Wyo. Stat § 9-11-103;
- An employer may not retaliate against an employee for performing jury service. +Wyo. Stat. § 1-11-401;
- A district school board may not retaliate against a school employee who tries to establish a charter school. +Wyo. Stat. § 21-3-308(b);
- Employers must not discriminate against a person who is a member of, applies to be a member of, performs or has performed in the uniformed services. +Wyo. Stat. § 19-11-104;
- An employee who is reinstated after leave for uniformed service may not be discharged without cause for one year after reemployment. +Wyo. Stat. § 19-11-111;
- An employer may not discharge an employee who is nominated or elected to public office and may not cause or attempt to cause an employee to withdraw from or refuse nomination for an elected office. +Wyo. Stat. § 22-26-112 et seq.;
- An employer may not discharge or discriminate against an employee because the employee has made any complaint to his employer, the state or any other person, or instituted a proceeding under Wyoming's equal pay laws. +Wyo. Stat. § 27-4-304;
- An employer may not discharge or otherwise discriminate against an employee based on his or her union membership or activity, or lack thereof. +Wyo. Stat. § 27-7-101 et seq.;
- An employer may not discriminate against any person on the basis of off-duty use or nonuse of tobacco products, unless it is a bona fide occupational qualification that an employee not use tobacco products outside the workplace. +Wyo. Stat. § 27-9-105; and
- Employers may not retaliate against an employee because the employee has filed a complaint, instituted a proceeding, exercised any right, or testified in a proceeding under the Wyoming Occupational Health and Safety Act. +Wyo. Stat. § 27-11-109(e).
Discharge Contrary to Public Policy
Termination for collection of workers' compensation benefits violates public policy and, therefore, gives rise to a court claim. Griess v. Consolidated Freightways Corp., +776 P.2d 752 (Wyo.1989).
Employees who have tried to advance claims for violations of free speech for their collection of workers' compensation benefits have been unsuccessful. Allen v. Safeway Stores, +699 P.2d 277 (Wyo. 1985), abrogated on other grounds,Hoflund v. Airport Golf Club, +2005 WY 17 (2005).
Nevertheless, any discharge that appears to violate public policy or an employee's protected rights may lead to employer liability.
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