Pamela Lowe

Former Idaho Transportation Department director Pamela Lowe

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On Feb. 1, Indiana joined Idaho and 21 other states by becoming a “Right to Work” state. That means the Hoosier State will now prevent union contracts from requiring non-union members to pay fees for representation.

In Idaho, what Right to Work essentially means is that employers don’t have to provide you with a reason for firing you. Legally they can simply say, “Your services are no longer required,” and that’s it. While the Idaho Human Rights Act does prevent termination based on race, sex, color, national origin, religion, age (over 40) and mental or physical disability, Idaho’s Right-to-Work law puts that burden of proof on the person who was fired.

Unions, obviously, loathe Right-to-Work laws. Critics scornfully deride them as “right to be fired” laws that give virtually no protection to innocent employees, allowing unscrupulous employers to pay them low amounts and fire them at the drop of a hat.

Many employers like the law because it makes it much easier for them to remove employees they’re not happy with, saving a lot of time and litigation costs. They argue that it makes no sense for them to abuse and low-ball good, productive, valued employees in a free market economy because those workers will leave and find another job where they’ll be more appreciated.

Like it or hate it, it’s the law in Idaho. But a judge has allowed a high-profile state wrongful termination lawsuit to continue on the grounds that state officials must provide a reason for the firing. It’s the case involving former Idaho Transportation Director Pam Lowe, and it brings into question whether some state officials should have extra immunity from Right to Work.

In July 2009, Lowe claimed she was fired for political reasons and because she was a woman. To date, the state has spent more than half a million dollars of your tax money in legal costs defending itself. Last week U.S. District Judge Ronald Bush said the case could go forward, dismissing the state’s argument that she was an “at-will” employee who could be fired at any time.

The gender discrimination complaint is based on the claim that former ITD board member Gary Blick said “No little girl would be able to run this department. ... What are we going to do when she decides to start a family?”

Did such a statement from one board member out of seven prompt the firing? That could be tough to prove. If it can be proved, the state stands a good chance to lose the case. But proving it will be an uphill climb.

It’s the other claim that opens the monkey cage.

Unlike many cabinet positions, which are appointed by the governor, the ITD director is hired by the ITD Board. The board said in 2009, when they fired Lowe, it was to “help the department continue improving customer service, economy of operations, accountability and our relations with the Legislature,” clearly taking the Right-to-Work approach.

The ITD director position was created in 1974. The law says “the director shall serve at the pleasure of the board and may be removed by the board for inefficiency, neglect of duty, malfeasance or nonfeasance in office.” That seems to give the ITD board a lot of legal leeway as to why it can dismiss its director.

Lowe argues she was a “classified” employee with protections against being fired. But should any state employee — classified or not — get such protections that those of us in the private sector don’t usually have? Should anyone be exempted from the spirit of Right to Work? That’s the crux of this matter.

The law is fuzzy on whether or not Lowe’s former post is classified or at-will. And any employer will tell you hiring and firing laws are already convoluted to begin with.

If Lowe eventually wins her case for any reason other than gender discrimination, it could make interpretation of Idaho’s Right-to-Work status all the more challenging.

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