Legal_Risk_and_Opportunity_in_Employment

Legal Risk and Opportunity in Employment Law 531, Business Law Legal Encounter 1 The wording of the statute regarding at will employment is plain. If there is not an agreement for a specified period of time either party can end the agreement. In this case, Pat did not need permission to leave NewCorp and NewCorp did not need a reason to terminate Pat. Pat can show that he relied on the personnel manual, which created an implied agreement. If NewCorp failed to follow the handbook and say, terminated Pat without the requisite suspension, NewCorp was in breach of the implied agreement. Pat could then recover all damages that flowed from the breach. However, if the handbook distinctively states that it is not a contract, and need not be followed by the company, then it does not matter what else it says. If there is no such language, and Pat relied on the handbook, and the company failed to follow the handbook, Pat may have a breach of contract action. Pat has a duty to mitigate losses he may suffer from the firing. Pat’s damages will be measured by how much he would have made from NewCorp from the date of the termination until the date of the trial, minus any earnings received from replacement employment before trial. He has a legal duty to search for employment similar in pay and accountability to his job as a manager of real property. He must accept comparable employment. Pat thinks senior management was clearly distant after he voiced his opinion at a school board meeting. His position on a meeting was not well-liked and though nobody recognized him as a NewCorp employee, he believes this contributed to the decision to terminate him. Pat may try to charge that NewCorp violated his First Amendment Right to Speech. However, opposite to another popularly held misconception, the right to free speech only protects one from disturbance by the government, not by individuals or companies. The First Amendment does not stop a private employer from limiting what one can say. Also since an employer can terminate an employee for every reason that does not violate public policy, this includes activities one does off work. Therefore, Pat can not use the fact that the school board meeting has nothing to do with work to bring a lawsuit up. Legal Encounter 2 Paula wants to switch departments to avoid unwelcome behaviors from Sam. Sam blocked the transfer citing that NewCorp could be held liable if Paula was to become pregnant and her child suffers a birth defect. Paula believes that Sam just wants to control her and that even if this is not the case, she is discriminated against illegally. Paula could very well sue NewCorp for sexual harassment. Vermont law defines sexual harassment as a form of sex discrimination that means unwelcome sexual advances, wishes for sexual favors, and other physical or verbal conduct of a sexual nature when: compliance to that conduct is made either explicitly or implicitly a term or condition of employment; giving in to or rejection of such conduct by an individual is used as a factor of the basis for employment decisions affecting that individual; the behavior has the purpose or effect of substantially interfering with an individual’s work performance or creating an threatening, antagonistic or offensive work environment. Sam exhibited unwelcome behaviors even after he was told to stop. Paula may also bring a sexual harassment lawsuit against NewCorp by claiming Sam blocked the transfer because she rejected his advances. These actions on Sam’s part fall under the sexual harassment law in Vermont. Because of changes in the law, Paula will not be required to show a loss of advancement, retaliation, loss of income, or stress as people once did under “quid pro quo” and hostile-environment. She will need to prove that the nature of the sexual content she was forced to deal with caused her to experience discrimination. NewCorp must show they took practical care to stop and right any sexual harassment behavior within their workplace. NewCorp must also show that Paula did not take advantage of any precautionary or corrective opportunities provided by NewCorp. Legal Encounter 3 Paul refused to work on the machine because he thinks the work space was too confining and hazardous. After the safety manager at NewCorp assessed the area and determined it to be safe, Paul called the Occupational Safety and Health Administration to complain about the company making him work in a dangerous situation. He claims that he is claustrophobic as a result of being required to work under these conditions. This is a workers compensation issue. The Workers' Compensation System was recognized by the Vermont Legislature in 1915 to pay compensation and shield employees who bear personal injury by accident arising out of and in the course of employment and to protect employers by limiting their exposure from lawsuits arising out of such injuries. Workers compensation is a "no-fault" insurance program which provides medical and disability benefits for work-related injuries and illnesses. Worker’s compensation covers traumatic injuries caused by unexpected accidents and gradual onset injuries resulting from repetitive motion or stress. By law, a company must quickly report a work injury that results in either medical attention or one or more lost days of work. Filing an initial report does not automatically make NewCorp legally responsible for that injury. The insurance adjuster will investigate the claim and either accept or reject the claim. Paul coming back to work is the desirable goal in workers' compensation. Paul’s return to work will allow NewCorp to discontinue paying disability benefits. NewCorp must be aware that an early return to work limits claim costs and helps to ensure that Paul’s life is somewhat normal again. Studies reveal that the longer the holdup in return to work, the less likely the employee is to return to work NewCorp can lessen their own liability and costs by identifying and providing suitable, personalized or part-time work for injured employees. Workers' compensation laws are intended to pay costs to employees who have been either injured or die in work-related accidents according to a fixed monetary plan, without resorting to litigation. NewCorp may be protected by limits placed on the amount of an employee's recovery. References Cheeseman, H. (2010). Business Law: Legal Environment, Online Commerce, Business Ethics, and International Issues, Seventh Edition. Chapters 31-33 Electronic Reserve Readings Lawyers.com www.OSHA.com labor.vermont.gov www.employer-employee.com www.toplawfirm.com