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Legal Risk and Opportunity in Employment Legal Encounter 1: Risk for wrongful termination suit in at-will employment agreement
The first scenario involves an at-will terminated employee (Pat) who alleges breach of implied contract. Pat’s employment was an at-will employee where either party can terminate employment at any time even without cause. There are several exceptions to at-will employment. The first is the presence of an expressed contract, the second the presence of an implied contract, the third is when the employer violates a mandate of public policy or an “implied covenant of good of good faith and fair dealing” (Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt, A.W., 2003, p 1194). An example of an an express contract nullifying at-will status is the presence of an employment contract with a fixed duration of employment. The second example is the allegation of Pat v. Newcorp , where the company handbook specifies that he will get a notification of poor performance (CAP) prior to termination. In Meier v. Family Dollar Services, (Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt, A.W., 2003), the employee prevailed because the employer failed to comply with the procedures outlined in the employment handbook. A disclaimer that states that the handbook policies are guidelines and not contracts can mitigate the company’s liability however Newcorp’s however Newcorp’s employee handbook did not have this and Pat believed that the procedures in the handbook for handling performance problems would be followed. The third exception applies when public policy mandate is not followed or the employer violates the good faith/fair dealing doctrine. An example of this exception is the right to file worker’s worker’s compensation claims. If the employee is terminated because they submitted a claim, wrongful termination would be justified (Muhl, C.J., 2001).
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Although Pat was told that he was terminated due to poor performance, he believes senior management behaved in an unfriendly way following a school board meeting where Pat voiced an unpopular opinion. This case is similar to the Supreme Court case of the Board of County Commissioners v. Umbehr where the petitioner alleged his termination was due to criticisms from the Board and a violation of his right to freedom of speech. The Supreme Court ruled in Umbehr’s favor (Oyez Project, 2009). Legal Scenario 2: Risk for sexual harassment suit
There are two types of sexual harassment cases that have one thing in common – both are violations of the Civil Rights Amendent of 1964, Title VII. Quid pro quo cases involve the loss of something tangible (promotion or job). The second type is hostile environment harassment. This can happen when an employee is sexually harassed and it creates a toxic environment for the victim (Wendt & Slonaker, 2004). In Meritor Savings v. Vinson (1986), Vinson had been subjected to sexual harassment and after her termination she filed suit against Meritor Savings. This landmark decision ruled that the victim need not be harmed by tangible measures merely creating a hostile working environment was enough to violate the Civil Rights Act of 1964, Title VII (Oyez Project, 2009). In the case of the employees from Newcorp and the situation between Sam and Paula, Newcorp is indeed liable. The company has a duty to prevent employees from committing sexual harassment. Failure to do so is a violation of the Civil Rights Act. The company is also liable for retaliatory damages due to Sam ’s behavior. Because he is her supervisor and he is preventing her from transferring to another part of the company, this rises to the level of a quid pro quo case. The situation is similar to Faragher v. the City of Boca Raton where the Supreme Court
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determined that the employer is liable for any manager who sexually harasses any of his or her employees. Legal Scenario 3: Risk for Occupational and Safety Health Administration violations
Under the General Duty clause of the OSH Act every employer is required to provide a place of employment that is safe from serious harm and severe damage to the employee’s health. A senior maintenance technician, Paul alleges that he is going to file a suit against Newcorp for two hazards: working in confined spaces and dangerous noise levels. OSHA is responsible for determining whether a combined space is not egregiously dangerous. Regulations specify the requirements necessary for confined spaces. (OSHA, 2009). Any area that does not meet OSHA safety standards would not be usable as a workstation. Given the exhaustive list of requirements, Newcorp should be certain that their supervisor who inspected and approved the safety of the area, is knowledgeable about all the requirements. Management should review his inspection notes to ensure that they are satisfied that the inspection was as exhaustive as OSHA’s. OSHA also sets the standards for noise and hearing conservation. The standards are specific and stringent. The first requirement is that the noise level is measured and within recommended limits. Long term hearing loss is a major concerns and needs to be monitored to maintain acceptable levels. The National Institute for Occupational Safety and Health (NOISH), under the CDC, evaluates conditions, report noise exposure and help companies correct noise (Centers for Disease Control, 2010). Newcorp should evaluate whether their noise level is acceptable. This is crucial since employees exposed to high levels of noise (100 dBA) over a period of 10 years, will result in 44% of the people exhibiting Noise-Induced Hearing Loss (NIHL) (Morata, 2007). Statistics are better with lower noise over less time, but is classified as a
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serious work-related condition by the Bureau of Labor and Statistics. Conversely, companies with hearing conservation programs in place have fewer employee absences and increases in productivity. Being proactive about protecting workers from hearing loss due to excessive noise will benefit Newcorp now and in the future.
Employment Scenarios
5 References
Chan, D. K., Chun B.L., Chow, S.Y., Cheung, S.F. Examining the Job-Related, Psychological, and Physical Outcomes of Workplace Sexual Harassment: A Meta-Analytic Review . Psychology of Women Quarterly, Dec2008, Vol. 32 Issue 4, p362-376, 15p; DOI:
10.1111 /j.1471-6402.2008.00451.x Centers for Disease Control and Prevention. (2010). National Institute of Occupational Safety and Health (NOISH). Retrieved from http://www.cdc.gov/niosh
Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt, A.W. (2003). Business Law: The Ethical, the Global & E-Commerce Environment (12th ed.). : McGraw-Hill Companies.
Morata, T.C. Promoting hearing health and the combined risk of noise-induced hearing loss and ototoxicity. Audiological Medicine. 2007; 5: 33-40. Muhl, C.J. (2001, January). The employment-at-will doctrine: three major exceptions. Monthly Labor Review.
Muhl, C.J. (2001). The employment-at-will doctrine: three major exceptions. Monthly Labor Review, 124(1), 3-12.
Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=f5h&AN=41391 82&site=ehost-live U.S. Department of Labor: Occupational Safety & Health Administration. (2007). Safety and Health Topics. Retrieved from http://www.osha.gov
U.S. Supreme Court Media. (2009). OYEZ . Retrieved from http://www.oyez.org Wendt, A C, & Slonaker, W M (Autumn 2002). Sexual harassment and retaliation: a doubleedged sword. SAM Advanced Management Journal, 67, 4. p.49(9). Retrieved January 11,
Employment Scenarios 2010, from Academic OneFile via Gale. (Document ID: A94465279).
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