older workers benefit protection act allows employers W r i t i n g
View chapters 18 and 19
Select TWO court cases (from different chapters) from the list below, and respond in writing to the case questions.
Dillon v. Champion Jogbra (Ch 18, p 672)
Dorshkind v. Oak Park Place of Dubuque II (Ch 18, p 681)
Lockheed Martin v. Administrative Review Board (Ch 18, p 689)
Lane v. Franks (Ch 18, p 707)
Weekes-Walker v. Macon County Greyhound Park (Ch 19, p 730)
Barnett v. PA Consulting Group (Ch 19, p 736)
Nanomech v. Suresh (Ch 19, p 751)
The requirements below must be met for your paper to be accepted and graded:
Write between 750 or 3 pages using Microsoft Word in APA style, see example below.
Include cover page and reference page.
The doctrine of employment at will (with exceptions) allows private non-union employers to terminate an employee for any reason except those expressly prohibited by law. In many cases, this includes off-duty behavior that may not have any bearing on fitness for the job. As we have seen, the law that provides these exceptions may be found in the constitution, statutes, the common law or torts. Such a termination is obviously stressful for the employee, and as a result, no action is more likely to result in a legal claim. This lecture will focus primarily on the issues related to private, non-union employees.
An employee’s rights can depend on whether the employee was fired or quit. For example, an employee cannot sue for wrongful termination if the employee resigned. The exception to this concerns constructive termination. A resignation is a constructive discharge when an employer creates intolerable working conditions with the intention of forcing an employee to quit such that a reasonable person would have felt compelled to quit.
Contract provides one exception to the employment at-will backdrop. A contract can set the terms for employment and termination. This contract can be explicit as in the case of movie stars and athletes. However, it can also be implied from written or oral statements made by employers combined with the employer’s course of dealing with the employee. This means that employers must be alert lest they inadvertently give contractual rights to employees.
To evaluate whether an implied contract exists, the courts will examine whether:
A specific promise was made.
The promise was made frequently and consistently.
The source of the promise was someone with authority to offer it.
The promise was communicated to the employee.
The promise was not highly conditional.
The employer’s entire “course of conduct” was consistent with the promise.
There was an exhaustive listing of dischargeable offenses in a handbook, and the offense for which the employee was fired was not in that list.
A change to a less-protective policy was not communicated to employees.
There was no effective disclaimer.
If an implied contract exists due to a handbook, the employer may ordinarily revise the handbook to remove the policy as long as the employee is given notice. Additionally, a good disclaimer communicating that all employment is at-will can lessen the chance an implied contract will be found—though these are not necessarily effective 100% of the time. Even if a contract doesn’t exist, the courts will require employers to act in good faith by not denying employees accrued benefits, and the doctrine of promissory estoppel may apply in situations where an employee relies on a promise to the employee’s detriment.
Public policy also supplies an exception to at-will employment. To qualify, there must be a clear public policy implicated. Discouraging the conduct the employee engaged in would undermine the policy. And the employee must be fired for engaging in conduct supportive of this policy. Once this is established, the plaintiff will prevail unless an overriding justification is established. The four most commonly established public policy exceptions are: 1) for refusing to commit an illegal act, 2) exercising a legal right, 3) performing a public duty, or 4) reporting illegal activity. Whistleblowing, in particular, is protected by a number of statutes, such as the Whistleblower Protection Act that prohibits the government from retaliating against public employees that disclose information related to violations of law or gross mismanagement. Various statutes also protect activity, such as jury duty or military service.
Public and unionized employees typically cannot be dismissed unless there is just cause or the employee’s due process rights are respected. Under these standards, an employer must show that there is a good reason for the termination decision and reasonable procedures must be used. Unions typically negotiate Collective Bargaining Agreements that allow termination only upon a showing of just cause, and there is a grievance and arbitration procedure to ensure that such cause exists.
When making this determination, the arbitrator will consider (among other factors) whether:
There are rules prohibited the complained of conduct.
How well the rule was communicated.
Is the rule reasonable or standard?
How consistently was the rule enforced?
Was the employee given due process (grievance and arbitration procedures)?
Is there proof the rule was violated.
Was progressive discipline applied (were warnings given for first-time offenses)?
Public employees often have union representation. However, these employees also have civil service laws and various constitutional protections that provide for due process, free speech, and other freedoms. Civil service laws are meant to ensure employment decisions are based on merit. These laws are meant to insulate employees from political and other pressures. Furthermore, the due process clauses of the 5th and 14th amendment apply to public employees, protecting them from termination without following proper procedures. These procedures will generally provide the employee with a hearing. During the hearing, notice will be provided, and evidence will be presented.
As you can see, termination can raise a whole host of legal issues. Due to this, employers are incentivized to find alternative ways of dealing with underperforming employees. If termination is required, it is advisable that good records and performance evaluations be kept. Additionally, severance packages can be offered in exchange for a release.
Chapter 18 of Walsh, D. (2015). Employment Law for Human Resource Practice. (5th ed.). Mason: South-Western.
Business necessity often requires downsizing or a reduction in force (RIF). However, there are some legal issues that surround these actions.
The National Labor Relations Act (NLRA) is the primary law that concerns downsizing. Downsizing may be an unfair labor practice when used to discriminate against union activities. Employers may go out of business, however, the employer may not selectively close facilities to inhibit unionization at other facilitates. Additionally, downsizing can also be a mandatory topic of bargaining that requires negotiation in good faith with the union before the RIF is put into action. A person who acquires a business with a union must negotiate with that union though the new owner is not bound by a previous labor agreement.
The Worker Adjustment and Retraining Notification Act (WARN) may also apply. This law prohibits employers from ordering plant closings or mass layoffs until the end of a 60-day period that follows the provision of written notice to affected employees. Interpreting this law’s many provisions can be difficult. It applies to employers with 100 or more full-time employees (or 100 full and part-time employees working at least 4000 hours a week). As employment levels fluctuate, counting these employees may be difficult, but this timer starts when the notice is given.
Although employers may avoid coverage by laying off people in waves, employment losses over a 90-day period can be combined to prove a mass layoff, and each wave may require a different notification. For the purposes of the act, a plant closing is a temporary or permanent shutdown of a single employment site that would affect at least 50 full-time employees during a 30-day period. A mass layoff is a reduction in force not caused by a plant closing that results in employment loss at a single work site during any 30-day period for at least 500 full-time employees.
RIFs can also implicate discrimination concerns. It is critical that the methods used to select employees to be laid off are not discriminatory. Determining which employees remain and which are to be downsized is a delicate matter. Age discrimination is particularly troubling in this context. To prove age discrimination in a RIF context, the plaintiff must show that they were treated less favorably than employees who were “substantially younger” even if those employees were not under 40. Furthermore, the ADEA prohibits mandatory retirement (with a limited exception for high ranking executives). However, the Older Workers Benefit Protection Act allows employers to offer incentives for early retirement as long as it applies to all employees older than a certain age.
Bankruptcy can also lead to downsizing. It’s important to note that employees do not have a high-priority claim for unpaid wages. Additionally, unions may opt to compromise to ease the financial burden on the bankrupt firm. However, the firm will not be necessarily freed from the obligations of the CBA after filing for bankruptcy.
Once the employee is let go, he or she may seek unemployment insurance. This is available to employees who suffered involuntary unemployment. The employee must be able to work, available to work and looking for work to be eligible. Additionally, the employee is not eligible if fired for serious, intentional misconduct or if the employee left voluntarily. However, constructive discharge will not render the employee ineligible. Eligibility will be established by examining work history over the base period prior to job loss. Unemployment insurance costs more for employers that produce more claims. The employer should only dispute the claim when there is a good-faith basis for doing so.
Some employers make contractual restrictive covenants a condition of employment. These aim to protect the employer by limiting the ability of former employees to do such things as: going to work for competitors, disclosing trade secrets or other sensitive information, soliciting clients or former coworkers to join or do business with the firm, or making disparaging comments about former employees. Public policy is strongly against these agreements for obvious reasons: an employer may be able to get the employee to agree to these as a matter of course. If strictly enforced, these could make it nigh impossible for someone to get any job. Noncompetition agreements are particularly disfavored and courts will only enforce them to the extent necessary to protect legitimate business interests.
As a rule of thumb, the court will enforce the agreement if it applies only to employees with special skills, such as a high executive. Additionally, the agreements need to be limited in geographic and temporal scope. Other restrictive covenants, such as non-solicitation agreements (preventing form employees from poaching the old firm’s clients and employees) on non-disclosure agreements (those prohibiting the employee from communicating confidential, trade secret, and proprietary information), are enforced more readily.
Chapter 19 of Walsh, D. (2015). Employment Law for Human Resource Practice. (5th ed.). Mason: South-Western