Legal_Risk_and_Opportunity_in_Employment

Legal Risk and Opportunity in Employment Marlena Timins Law 531 Ivy Voss November 2, 2009 “CERTIFICATE OF ORIGINALITY: I certify that the attached paper, which was produced for the class identified above, is my original work and has not previously been submitted by me or by anyone else for any class.  I further declare that I have cited all sources from which I used language, ideas and information, whether quoted verbatim or paraphrased, and that any and all assistance of any kind, which I received while producing this paper, has been acknowledged in the References section.  This paper includes no trademarked material, logos, or images from the Internet, which I do not have written permission to include.  I further agree that my name typed on the line below is intended to have, and shall have the same validity as my handwritten signature.   Student's signature (name typed here is equivalent to a signature):” __Marlena Timins___ interoffice memorandum to: Ivy N. Voss from: Marlena Timins subject: Legal risk and opportunity in employment date: [ 11/2/2009 ] Legal Risk and Opportunity in Employment The purpose of this paper is analyze three employement law situations that were encountered during the course of business at Newcorp. The memo will discuss the rights and responsibilities of Newcorp as an employer as well as the responsibilities of employees. Legal Encounter/Question #1 According to the syllabus, Newcorp hired Pat Gray to manage real property in Vermont. Pat Gray's primary responsibilities were related to maintaining leased office space. Pat managed a staff of 51 employees and lower level managers. Pat also dealt directly with commercial tenants who leased space from Newcorp. To accept the position at Newcorp Pat Gray relocated from a city that was approximately 300 miles from his prvious home, he moved his spouse, children, sold his old house and bought a new one in Vermont, and his spouse had to quit her job to seek a new job in Vermont. After Pat had been on the job at Newcorp for approximately 3 months Pat's boss decided that thier employment arrangement was not working out, and that Pat's employment at NewCorp was being terminated with 30 days severance pay. Pat was taken with a bit of surprise as he had no prior indication of any type of performance problems with regard to his employment at Newcorp. Newcorp had an employee manual that was provided to Pat when he accepted the job at Newcorp. In this manual there was an outlined process for dealing with unsatisfactory employee's. The process that was outlined in the manual stated that if the job performance of any employees was unsatisfactory that the employee would be notified of the situation, and further that the employee would be placed on a corrective action plan. The employee would then have a certain amount of time to improve thier work performance or be subject to possible termination. In the case of Pat Gray the outlined process never took place. Pat acknowledged when he began his employment at Newcorp, that Newcorp observed an employment at will policy with regard to both the employment and discharge of it's employee's, but Pat also felt that the above provision limited Newcorp's ability to fire him at will, as Pat was of the understanding that he had an implied employment contract with Newcorp. Pat however did notice that senior management within the company was seemingly unfriendly to him after he had been vocal at a local school board meeting, and Pat believed that this contributed to Newcorp's decision to terminate his employment. Courts have often ruled that there is an implied existence of a contract due to factors such as the employer making promises to an employee, and the employers own policies and procedures. "When an employer and an employee enter into a formal agreement be it written or verbal specifying the terms of an employment relationship they have an express employment contract". (U.S. Chamber of Commerce,2008) "Likewise an implied employment contract is not an agreement that is always knowingly entered into, but occurs when the courts side with a fired employee that the employer made some sort of promise to the employee and then broke the promise." (U.S. Chamber of Commerce, 2008). "The promises that usually underlie implied employment contracts are statements that are made in the employee handbook, in orientation materials, or orally." (U.S. Chamber of Commerce, 2008). There is then the situation of the comments made by Pat at the local school board meeting. Pat believes that this may have at least in part led to his employment termination at Newcorp. If this what occurred with regard to Pat's termination then there possibly is a case for undisclosed principal, which occurs when a person or agent acts without disclosure of the nature of his agency or the name of his principal, and when such agent is liable to a third party. If Newcorp had concerns or issues with the statements made by Pat at the local school board meeting, and terminated him because of this, the termination is erroneous because when Pat made the statements he was not acting as an agent for Newcorp. Newcorp may have had concern because of an agency relationship that they had with Pat because often times principals have liability for the acts of their agents. It is possible that others and the general public may have perceived Pat's comments to be the position of Newcorp when they in fact were not. Perhaps Pat Gray should have been more tactful in the way that he voiced his opinion so that it would not in any way affect Newcorp. In this situation Newcorp should seek resolution to this case, as they potentially could face a lawsuit for wrongful termination due to an implied contract that they had with Pat Gray. In the future, to avoid this situation, Newcorp should put into place a formal procedure for the termination of employees and follow all of thier outlined and written policies in order to prevent future issues or potential lawsuits. Newcorp should seek to resolve this situation by means of alternative dispute resolution (ADR). Legal Encounter/ Question # 2 Sam works for Newcorp as a supervisor in their electrical manufacturing division. Sam has an agency relationship with Newcorp. Sam directly oversees 100 employees male and female,in his department. Sam had a relationship with one of his female employee's, Paula. Sam and Paula had an affair that often involved interludes within the workplace. Eventually Paula broke off the affair with Sam and began to date someone who did not work at Newcorp . Sam continued touching Paula and engaging in other unwanted behavior after Paula told him to stop. Sam then complained about Paula's work. Paula wanted to get away from Sam so she applied for a transfer to a different department, which is not under the supervision of Sam. Sam opposed Paula's transfer citing a Newcorp policy that states some of the chemicals used in wire coatings have the potential to harm an unborn fetus. Sam argued that Newcorp could not take such a chance because Paula was a young woman that could become pregnant, and Newcorp could be liable for any harm done to her unborn fetus. Paula believed this was Sam's way to attempt to keep her under his control. Title VII of the Civil Rights Act of 1964 "prohibits discrimination based on sex, race, religion, and national origin." Title VII was amended in 1978 to add pregnancy as a protected status. This act expressly prohibits refusing to hire or promote an individual on the basis of pregnancy or other family planning issues. In 1990 there was a Supreme Court case ( Johnson Controls) that held that a woman cannot be discriminated against based on the fact that she might become pregnant. "Essentially the only thing an employer can do is fully inform as to the potential fetal effects that could occur in connection to working with certain chemicals."(Ascension Health, 2009) Sam's actions while acting as an agent for Newcorp may be construed as discriminatory and harassing under Title VII of the Civil Rights Act of 1964. Sam's action should be corrected right away. Paula's concerns should be immediately addressed. If there were to be a lawsuit in this situation Newcorp could be subject to a range of court sanctions including damages, punitive damages, attorney fees, back pay and injunctions among others. Legal Encounter/ Question # 3 Paul was employed by Newcorp as a senior maintenance technician. In Paul's capacity as a maintenance technician he is sometimes required to work in small confined spaces to repair equipment. Repairing the pulp shredder is especially difficult because the work space is very narrow and noise and vibration from the machine can be very irritating when turned on and off during repairs. At one point an employee had been injured while working on the machine, so Newcorp moved it a little to create more workspace, but none the less the nearby building support beams still allowed little movement. Stating that it was still too confining and dangerous, Paul refused to work on the machine. The safety manager for Newcorp reviewed the work area and deemed it to be safe. Paul stated that he became claustrophobic working in such small spaces and that it arose from his job making it a workman's compensation issue. Paul notified OSHA over this issue. Generally the purpose of workman's compensation programs are to provide medical care, and monetary benefits in lieu of wages to employees with work related injuries. This includes all types of injuries including psychological issues, so Paul's claim is a plausible one."Employee negligence, employer precautions, contributory negligence, and assumption of risk are generally not issues in workers’ compensation cases". (Jennings, chap. 19) If OSHA investigates as a result of the complaint filed by Paul, he cannot be retaliated against in any manner. There are whistleblower statues in effect to protect those employees who report illegal actions. Since Paul has threatened to sue Newcorp with regard to this issue, Newcorp should engage in Alternative Dispute Resolution with Paul in terms of avoiding the time and legal expense involved in litigating the matter in court. A mutually agreeable settlement will put the issue to rest much more quickly. References: U.S. Chamber of Commerce. (2008). Implied Employment Contracts. Retrieved from http://business.uschamber.com/P05/P05_8175.asp Jennings, M. M. (2006). Business: Its legal, ethical, and global environment (7th ed.). Mason, OH: Thomson Ascension Health. (2009). Johnson Controls. Retrieved from http://www.ascensionhealth.org/index.php'option=com_content&view=article&id=247&Itemid=173