Law_531_Legan_Encounter

LAW 531 Legal Encounter Legal Encounter 1 Pat resigned his position, sold and purchased a new home and his wife left her employment when he accepted a position with NewCorp. Upon hire, Pat received a Personnel Manual that contained “Notice of Unsatisfactory Performance/Corrective Action Plan” (UoP, 2010 Legal Encounter). The section provides the benefit of notification of unsatisfactory performance and a Corrective Action Plan (CAP) for employee with dismissal if performance does not improve. When Pat accepted NewCorps offer there was a benefit in the reliance of the offer even though Pat was aware of at will employment and discharge. Three months later, with no performance warnings, Pat was told he would be terminated with severance. According to Jennings (2006) one aspect that determines if a personnel manual constitutes a contract is the reliance of an employee on the manuals procedures and terms. NewCorp employees rely on the personnel manuals content therefore the manual constitutes a contract. NewCorp breached the contract when they did not provide Pat with examples of unsatisfactory or with a corrective action plan. Newcorp could avoid breach of contract and wrongful termination by placing Pat on a CAP. If performance did not improve at the end of the CAP NewCorp would be within their right to proceed with termination. Pat could invoke promissory estopple, holding NewCorp for wrongful termination because he relied on the manual to his detriment. In addition, Pat could make a case for disparate treatment if he can prove that his discharge was because of comments he made at the school board meeting. NewCorp could prevent benefit of reliance by including a disclaimer that the manual does not constitute an employment contract and NewCorp exercises at will termination. Pat has the right to pursue litigation for wrongful termination based on NewCorp’s personnel manual for breach of contract. Jennings (2006) cites case 8.7 Dillon versus Champion Jogbra, Inc. in which the personnel manual in this case clearly states that the policies and procedures in the manual represent guidelines only and are not part of an employment contract and reserve the right to terminate an employee at will (Jennings, 2006, p. 728). If Pat were within the 90 probationary period NewCorp could terminate Pat at will. If he exceeded the probationary period NewCorp should rescind the termination and follow company policy related to unsatisfactory performance. Legal Encounter 2 Title VII, under the Civil Rights Act of 1964, prohibits discrimination based on religion, color, sex, race, or national origin. Title VII has three theories of discrimination: disparate treatment, disparate impact, and pattern of practice of discrimination (Jennings, 2006, p. 790). Disparate treatment refers to discrimination based on one race or sex from another resulting in less favorable treatment. Disparate impact refers to employment standards that effect or impact based on sex or race. Title VII also applies to sexual discrimination and sexual harassment. If NewCorp has a policy prohibiting women to work in some divisions because of certain risks men would have to be considered for the same risks. Women would incur disparate treatment if policies do not apply to both sexes. Scientific evidence of a claim should be used to substantiate polices specific to women or to men. If risks are apparent to both sexes NewCorp has the responsibility to provide protective equipment, safety gear, precautionary measures, and specialized training to prevent harm. Jennings (2006) refers to a disparate impact case in Dothard v. Rawlinson (p. 793). Disparate impact resulted when minimum requirements for a prison guard were 5’2” and 120 lbs. The requirement excluded many female and few male candidates. The requirement was to ensure that guards could perform the jobs for safety reasons but the effect was excluding many females from consideration. Sam blocked Paula’s transfer citing a company policy prohibiting female employees from working in the wire coating division because of evidence that certain chemicals used could harm an early stage fetus, and because Paula was of child bearing age, the transfer could not take place. If NewCorp has such a policy for women and not for men, there is a disparate impact to women which blocks potential employment options especially if these chemicals could also impact men’s reproductive system. If an unwarranted policy exists NewCorp is guilty of sexual discrimination. If Sam is citing a policy that does not exist to block Paula’s transfer he is creating a hostile work environment. Sexual harassment is a form of sex discrimination under Title VII. Sexual harassment can be in the form of requesting sexual favors, unwanted sexual advances, and other physical or verbal conduct of a sexual nature. Sam’s continued unwelcome behavior forced Paula to apply for a transfer creating an environment of sexual harassment. Sexual harassment exists if the situation unreasonably interferes with an individual's work. Legal Encounter 3 To ensure worker safety the Occupational Safety and Health Act was passed by Congress in 1970. The Act created three agencies, one being the Occupational Safety and Health Administration (OSHA) to promulgate and enforce safety standards in the workplace. One focus of OSHA is equipment use and protective gear. NewCorp has the responsibility to know and follow OSHA rules, inspect and correct hazards, inform employees of their rights, record keeping, and posting citations. Paul called OSHA to register a complaint that NewCorp required him to work in a dangerous situation. Because employee complaints are a priority to OSHA NewCorp cannot retaliate against Paul. Jennings (2006, p. 747-48) refers to case 19.1 that states that circumstances may exist in which a employee reasonably believes if the employer orders the employee to work under conditions that the employee reasonably believes poses an imminent risk of death or serous injury the employee can refuse to expose themselves to dangerous conditions and cannot be subjected to “subsequent discrimination” by the employer. OSHA is designed to prevent death and injury. NewCorp has a duty to provide a place of employment and employment free of hazards likely to cause harm. There is no evidence to support if NewCorp issued a report to OSHA on the employee injured while working on the shredder. As a result of the injury Safety moved the machine to the extent they could. Safety should be proactive in moving the machine to an area in which it could be used and maintained safely. Paul stated that he was going to report a claim under workers comp based on claustrophobia from working in confined spaces. Working in confined spaces was disclosed to Paul upon employment. Paul is responsible for reporting his condition when first realized to human resources and to occupational health for diagnosis and documentation and cannot claim claustrophobia without confirmed diagnosis from a physician. If he no longer wants to work in confined areas he should request a change of duty. If he is claustrophobic NewCorp has a duty to reassign him based on the disability. The safety manager deemed the work area safe but Paul does not have to consider it safe if he believes there is an inherent danger and is opposed to working in that area. Paul has every right to consult an attorney but he should first try to work out his differences with his employer. NewCorp should be open to Paul’s concerns and take into account what he is disclosing. NewCorp would benefit from making adjustments to ensure all employees are working in a safe environment. References Jennings, M. (2006). Business: Its Legal, Ethical, and Global Environment (7th ed.). : Thompson Learning, Inc. ISBN: 9780324204889  University of Phoenix (2010). Legal Encounters. LAW 531 Syllabus