Employment-At-Will Doctrine: Case Study
Assignment 1: Employment-At-Will Doctrine
Strayer University
LEG 500: Law, Ethics, and Corporate Governance
Prepared for: Dr. Boneita Campbell
February 3, 2014
Introduction Employers adopt policies that are to be followed by employees ensuring the protection of all involved. Employment-at-will, the doctrine in American law is defined on the basis that the employment relationship can be terminated by either party with an advanced notice or even without one. Relationships among employers and their employees are dependent upon at will in all U.S. states except Montana. The United States is one of a few countries where employment is mainly at will. Employers will dismiss employees only for cause in …show more content…
most countries throughout the world. Basically, the employer and the employee have not agreed that the employee’s employment will last for any minimum time. At will allows an employer to terminate an employee at any time for any reason, except for an illegal one, or for no reason without incurring legal liability. It can be viewed vice versa, where an employee is free to leave a job, at any given time for any or no reason with no adverse legal consequences. An example of when the employer can discharge an employee for a good reason can be poor job performance. An example of a bad reason for an employee to be discharged is a mistaken belief that the employee has engaged in misconduct. Employment at will is inconsistent with the existence of an agreement not to discharge the employee without good cause, so the doctrine provides employers with a strong defense against claims based on such agreements.
Whether you can legally fire or not
Scenario One: John posted a rant on his Facebook page criticizing the company’s most important customer. In this scenario, John voiced his opinion concerning the company’s most important customer. Freedom of speech is permitted as far as criticizing the government, but no right to a job with a company. However, if John was accusing his employer of doing something illegal, then it would be an exception for a chance to be protected by whistleblower laws. Before a determination is made, the company will need to ensure there is a policy in effect for this type of behavior. If the company has a zero tolerance for this kind of behavior John can be legally fired. However if there is no policy in effect John will be given a warning, and a policy will be put in effect for a no tolerance for negative criticism to company customers. John placed the company in jeopardy, his job, and the trust of the client. The company will now need to repair the damage written, and direct the issue to their employees. Employees should receive training or a meeting on the policy in regards to social media, and inform the employees of the consequences for posting negative comments regarding the company. Upon completion of training, a form should be signed by employees acknowledging information received and the results of non-compliance with the policy. Critical information regarding the company’s customer cannot be revealed on social media sites.
Scenario Two: Jim sent an email to other salespeople protesting a change in commission schedules and bonuses and suggesting everyone to boycott the next sales meeting. Jim’s actions were tolerable but limited. Employees have to understand their position within the workplace. Many people will disagree with situations; however this should not lead to an email communication among a coworker. The situation could have been approached in a different manner. A chain of command should have taken place to express his concern to reach the appropriate person. If disruption is caused by the actions performed it can lead to Jim being legally fired under the employment-at-will doctrine.
Scenario three: Ellen started a blog to protest the CEO’s bonus, noting that no one below director has gotten a raise in two (2) years and portraying her bosses as “know - nothings” and “out -of-touch”
Ellen is no different from anyone else in regards to not receiving a raise in two years. A review of the company’s compensation policy must be reviewed by Ellen to gain a better understanding. She has the right to address the problem under the employment-at-will doctrine, but her choice of words could be criticizing towards the CEO. Ellen will be held responsible and will have to accept the consequences her actions may bring. Depending on how harsh the vocabulary used to protest the CEO, Ellen can be fired for her unruly behavior towards a superior.
Scenario four: Bill has been using his company-issued BlackBerry to run his own business on the side. Bill is in violation of utilizing a company cell phone for his own personal business. Company property is meant for business purposes and not personal use. This can lead to an employee being liable for misuse, loss, or theft. An act of fraud can occur with the misuse of company property. Bill can be legally fired for using the company’s BlackBerry in which personal use is prohibited.
Scenario five: The secretaries in the accounting department decided to dress in black-and-white stripes to protest a memo announcing that the company has installed keylogger software on all company customers. Upon approval of the software to be installed, a company meeting should have informed employees of the new program. The meeting provided an explanation of why the keylogger software was being installed and the consequences for those who did not accept the new feature. Secretaries had to accept the new rules or the company will be forced to hold them for insubordination. They have a right to freedom of expression to protest. The right to express concerns is acceptable for probable cause; as long as it does not disrupt and lead to chaos in the workplace.
Scenario six: After being disciplined for criticizing a customer in an email (sent from his personal email account on a company computer), Joe threatens to sue the company for invasion of privacy.
Employees should be informed by their employer on how messages will be handled within the company. All messages sent, received, and stored in the email system will be treated as business messages. Monitoring will be considered applicable due to the company’s right to review, monitor and disclose messages. Employees should be warned on unacceptable use of emails sent for personal use; whereas these messages will not be treated differently from other messages. Files may be protected however authorized personnel have access to check messages for business purposes.
Invasion of privacy is a state-law claim therefore the standards vary among jurisdictions. An employee must show that there was a reasonable expectation of privacy in the communication at issue. Most employees who have sued their employers for monitoring have done so under state invasion of privacy actions. In general, the employee must show that he or she had a reasonable expectation of privacy in the communication at issue.
Scenario seven: One of the department supervisors requests your approval to fire his secretary for insubordination. Since the secretary has always received glowing reviews, you call her into your office and determine that she has refused to prepare false expense reports for her boss.
This scenario is a case where the employee cannot be legally fired. She was asked to perform a job in an illegal and unethical way. She handled the situation correctly by choosing not to partake in the situation. Employees are supposed to follow the orders of their supervisor/boss; however not in all instances when it places one in jeopardy. However, if the supervisor’s request was something to perform in a legal way, the employee can be held accountable for insubordination.
Scenario eight: Anna’s boss refused to sign her leave request for jury duty and now wants to fire her for being absent without permission. Employers are required to give employees time off for jury under state laws. Individuals have a legal duty to serve on a jury. If one fails to appear as what is expected, it can lead to fines and imprisonment. It is unlawful to terminate if she went to jury duty. Anna is protected by certain laws which leads to a violation of the law. She may be wrongfully terminated on the basis of her rights to attend jury duty.
Research by Beesley (2012), your power to fire is not unlimited. Here are some things you can’t fire someone for:
Discrimination – Federal anti-discrimination law prevents employers from firing employees based on age, race, gender, religion or disability.
Whistleblowers – You can’t fire employees for complaining about any illegal activity, health and safety violations, or discrimination or harassment in the workplace. These statutes and laws vary by state, so check with a lawyer if, for example, you wish to fire someone who has complained or testified against you in court.
Exercising Legal Rights – You can’t fire employees for taking family or medical leave, military leave, time off to vote or serve on a jury.
Recommend to the CEO that the company should adopt a whistleblower policy or not
Many employees refrain from speaking in fear of losing their jobs. Others will come forward and speak the truth. This is considered blowing the whistle on unethical conduct taken place in the workplace. A whistleblower policy’s purpose is to inform legal and ethical issues affecting a company as a whole. Different types of misconduct include financial errors, violations of company policies, failure to comply with legal requirements, and breaches of ethical obligations. Research by Gallop (2008) state under Sarbanes-Oxley, criminal penalties apply to nonprofits and for-profits alike for taking retaliatory action against an employee who reports suspect illegal activity.
A whistleblower policy should be recommended to the CEO for the company.
A policy can help companies protect themselves from violating state and federal laws. It will ensure any problems that occur will be investigated and fixed. Whistleblowing policies encourage people to bring concerns forward without fear of retaliation. An effective policy will demonstrate sufficient internal controls providing evidence that safeguards exist. Companies who do not implement a policy lack an interest of preventing and responding to company abuse. Implementing a proper policy will reflect well on the company. According to Halbert & Ingulli (2012), suggestion to implement a whistleblower policy says that an employee can call out another employee for unethical or illegal …show more content…
act.
From a liability standpoint, a comparison of policies and practices with suitable legal and best practice standards are done. Companies who fall short are challenged. Internal reporting will help achieve more effective management and governance, and provide better protection to the company’s employees against future liabilities. Problems can be addressed before they increase can be handled proactively. External reporting and qui tam filings might be avoided.
Three fundamental items that should be included in a whistleblower policy
Whistleblower policies are beneficial within an organization.
However, a few added benefits should be included in a policy. Three items that should be included in a whistleblower policy consists of: staff reporting internally and in good faith; a guarantee of protection for the reporter against retaliation; and responsibility for employees to disclose information to appropriate parties.
Staff reporting internally and in good faith Staff should be able to voice concerns internally in a responsible and effective manner. Staff should be the first point of contact to consider to raise any concerns. A whistleblower policy reinforces the value placed on the staff to be honest and respected members of their professions. Reporting provides a way of addressing bona fide concerns that employees might have. The protection of all staff from victimization, harassment, or disciplinary action as a result of a disclosure. The disclosure is made in good faith and is not made to intend harm or for personal gain.
Guarantee of protection for the reporter against
retaliation All staff members must be knowledgeable about the policy. Reports must be handled correctly by going through the appropriate channels. Management is held responsible to ensure all employees are aware of the policy and understand how to report. Any employee who reports in good faith a violation of the policy will not suffer for retaliation, harassment, or employment consequence. Any employee who retaliates against anyone who has reported a complaint will be subjected to disciplinary action and can lead up to termination. According to Clinton-Essex-Franklin Library System (2009), all violations or suspected violation may be submitted on a confidential or anonymous basis. Reports of violations or suspected violations will be kept confidential to the extent possible, consistent with the need to conduct an adequate investigation.
Responsibility for employees to disclose information to appropriate parties
Employees are entitled to disclose information to a government or law enforcement agency. This would only take place where the employee has a reasonable cause to believe that the information discloses violation of state, federal, rule or regulation. An employer can not adopt or enforce any rule or policy that prevents an employee from disclosing such information. Employers cannot retaliate against an employer for exercising their rights of disclosure. According to the U.S. Department of the Interior (2013), employees who disclose information are fully informed of their rights, responsibilities and remedies under anti-retaliation laws, and provides advisory services and support to whistleblowers.
Conclusion An employee can be dismissed by an employer for any reason under the employment-at-will doctrine. Termination can take place anytime unless it is an illegal reason. Certain cases can be legally unacceptable to dismiss an employee. Three reasons why an individual cannot be fired under employment-at-will is discrimination, whistleblowing, and exercising legal rights. Employees have to act accordingly while on the job as well as off the job to minimize their risk of being dismissed. All employers should have a whistleblower policy available for their employees. Some employees may come forward to report an unethical concern without fear of retaliation. Companies who do not implement a policy can place their employees in fear for abuse. Staff reporting internally and in good faith; a guarantee of protection for the reporter against retaliation; and responsibility for employees to disclose information to appropriate parties are three items that should be included in a whistleblower policy.
References
Beesley, C. (2012). “How to fire an employee and stay within the law.” Retrieved from www.sba.gov
Clinton-Essex-Franklin Library System. (2009). “Whistleblower protection policy.” Retrieved from www.cefls.org
Gallop, J. (2008). “Effective whistleblower policies a must for health care organizations.” Retrieved from http://newenglandinhouse.com
Halbert, T. & Ingulli, E. (2012). Law and Ethics in the Business Environment. (7th ed). Mason, OH: Cengage Learning
U.S. Department of the Interior. (2013). “Whistleblower protection and Ombudsman program.” Retrieved from www.doi.gov
Strayer University
LEG 500: Law, Ethics, and Corporate Governance
Prepared for: Dr. Boneita Campbell
February 3, 2014
Introduction Employers adopt policies that are to be followed by employees ensuring the protection of all involved. Employment-at-will, the doctrine in American law is defined on the basis that the employment relationship can be terminated by either party with an advanced notice or even without one. Relationships among employers and their employees are dependent upon at will in all U.S. states except Montana. The United States is one of a few countries where employment is mainly at will. Employers will dismiss employees only for cause in …show more content…
most countries throughout the world. Basically, the employer and the employee have not agreed that the employee’s employment will last for any minimum time. At will allows an employer to terminate an employee at any time for any reason, except for an illegal one, or for no reason without incurring legal liability. It can be viewed vice versa, where an employee is free to leave a job, at any given time for any or no reason with no adverse legal consequences. An example of when the employer can discharge an employee for a good reason can be poor job performance. An example of a bad reason for an employee to be discharged is a mistaken belief that the employee has engaged in misconduct. Employment at will is inconsistent with the existence of an agreement not to discharge the employee without good cause, so the doctrine provides employers with a strong defense against claims based on such agreements.
Whether you can legally fire or not
Scenario One: John posted a rant on his Facebook page criticizing the company’s most important customer. In this scenario, John voiced his opinion concerning the company’s most important customer. Freedom of speech is permitted as far as criticizing the government, but no right to a job with a company. However, if John was accusing his employer of doing something illegal, then it would be an exception for a chance to be protected by whistleblower laws. Before a determination is made, the company will need to ensure there is a policy in effect for this type of behavior. If the company has a zero tolerance for this kind of behavior John can be legally fired. However if there is no policy in effect John will be given a warning, and a policy will be put in effect for a no tolerance for negative criticism to company customers. John placed the company in jeopardy, his job, and the trust of the client. The company will now need to repair the damage written, and direct the issue to their employees. Employees should receive training or a meeting on the policy in regards to social media, and inform the employees of the consequences for posting negative comments regarding the company. Upon completion of training, a form should be signed by employees acknowledging information received and the results of non-compliance with the policy. Critical information regarding the company’s customer cannot be revealed on social media sites.
Scenario Two: Jim sent an email to other salespeople protesting a change in commission schedules and bonuses and suggesting everyone to boycott the next sales meeting. Jim’s actions were tolerable but limited. Employees have to understand their position within the workplace. Many people will disagree with situations; however this should not lead to an email communication among a coworker. The situation could have been approached in a different manner. A chain of command should have taken place to express his concern to reach the appropriate person. If disruption is caused by the actions performed it can lead to Jim being legally fired under the employment-at-will doctrine.
Scenario three: Ellen started a blog to protest the CEO’s bonus, noting that no one below director has gotten a raise in two (2) years and portraying her bosses as “know - nothings” and “out -of-touch”
Ellen is no different from anyone else in regards to not receiving a raise in two years. A review of the company’s compensation policy must be reviewed by Ellen to gain a better understanding. She has the right to address the problem under the employment-at-will doctrine, but her choice of words could be criticizing towards the CEO. Ellen will be held responsible and will have to accept the consequences her actions may bring. Depending on how harsh the vocabulary used to protest the CEO, Ellen can be fired for her unruly behavior towards a superior.
Scenario four: Bill has been using his company-issued BlackBerry to run his own business on the side. Bill is in violation of utilizing a company cell phone for his own personal business. Company property is meant for business purposes and not personal use. This can lead to an employee being liable for misuse, loss, or theft. An act of fraud can occur with the misuse of company property. Bill can be legally fired for using the company’s BlackBerry in which personal use is prohibited.
Scenario five: The secretaries in the accounting department decided to dress in black-and-white stripes to protest a memo announcing that the company has installed keylogger software on all company customers. Upon approval of the software to be installed, a company meeting should have informed employees of the new program. The meeting provided an explanation of why the keylogger software was being installed and the consequences for those who did not accept the new feature. Secretaries had to accept the new rules or the company will be forced to hold them for insubordination. They have a right to freedom of expression to protest. The right to express concerns is acceptable for probable cause; as long as it does not disrupt and lead to chaos in the workplace.
Scenario six: After being disciplined for criticizing a customer in an email (sent from his personal email account on a company computer), Joe threatens to sue the company for invasion of privacy.
Employees should be informed by their employer on how messages will be handled within the company. All messages sent, received, and stored in the email system will be treated as business messages. Monitoring will be considered applicable due to the company’s right to review, monitor and disclose messages. Employees should be warned on unacceptable use of emails sent for personal use; whereas these messages will not be treated differently from other messages. Files may be protected however authorized personnel have access to check messages for business purposes.
Invasion of privacy is a state-law claim therefore the standards vary among jurisdictions. An employee must show that there was a reasonable expectation of privacy in the communication at issue. Most employees who have sued their employers for monitoring have done so under state invasion of privacy actions. In general, the employee must show that he or she had a reasonable expectation of privacy in the communication at issue.
Scenario seven: One of the department supervisors requests your approval to fire his secretary for insubordination. Since the secretary has always received glowing reviews, you call her into your office and determine that she has refused to prepare false expense reports for her boss.
This scenario is a case where the employee cannot be legally fired. She was asked to perform a job in an illegal and unethical way. She handled the situation correctly by choosing not to partake in the situation. Employees are supposed to follow the orders of their supervisor/boss; however not in all instances when it places one in jeopardy. However, if the supervisor’s request was something to perform in a legal way, the employee can be held accountable for insubordination.
Scenario eight: Anna’s boss refused to sign her leave request for jury duty and now wants to fire her for being absent without permission. Employers are required to give employees time off for jury under state laws. Individuals have a legal duty to serve on a jury. If one fails to appear as what is expected, it can lead to fines and imprisonment. It is unlawful to terminate if she went to jury duty. Anna is protected by certain laws which leads to a violation of the law. She may be wrongfully terminated on the basis of her rights to attend jury duty.
Research by Beesley (2012), your power to fire is not unlimited. Here are some things you can’t fire someone for:
Discrimination – Federal anti-discrimination law prevents employers from firing employees based on age, race, gender, religion or disability.
Whistleblowers – You can’t fire employees for complaining about any illegal activity, health and safety violations, or discrimination or harassment in the workplace. These statutes and laws vary by state, so check with a lawyer if, for example, you wish to fire someone who has complained or testified against you in court.
Exercising Legal Rights – You can’t fire employees for taking family or medical leave, military leave, time off to vote or serve on a jury.
Recommend to the CEO that the company should adopt a whistleblower policy or not
Many employees refrain from speaking in fear of losing their jobs. Others will come forward and speak the truth. This is considered blowing the whistle on unethical conduct taken place in the workplace. A whistleblower policy’s purpose is to inform legal and ethical issues affecting a company as a whole. Different types of misconduct include financial errors, violations of company policies, failure to comply with legal requirements, and breaches of ethical obligations. Research by Gallop (2008) state under Sarbanes-Oxley, criminal penalties apply to nonprofits and for-profits alike for taking retaliatory action against an employee who reports suspect illegal activity.
A whistleblower policy should be recommended to the CEO for the company.
A policy can help companies protect themselves from violating state and federal laws. It will ensure any problems that occur will be investigated and fixed. Whistleblowing policies encourage people to bring concerns forward without fear of retaliation. An effective policy will demonstrate sufficient internal controls providing evidence that safeguards exist. Companies who do not implement a policy lack an interest of preventing and responding to company abuse. Implementing a proper policy will reflect well on the company. According to Halbert & Ingulli (2012), suggestion to implement a whistleblower policy says that an employee can call out another employee for unethical or illegal …show more content…
act.
From a liability standpoint, a comparison of policies and practices with suitable legal and best practice standards are done. Companies who fall short are challenged. Internal reporting will help achieve more effective management and governance, and provide better protection to the company’s employees against future liabilities. Problems can be addressed before they increase can be handled proactively. External reporting and qui tam filings might be avoided.
Three fundamental items that should be included in a whistleblower policy
Whistleblower policies are beneficial within an organization.
However, a few added benefits should be included in a policy. Three items that should be included in a whistleblower policy consists of: staff reporting internally and in good faith; a guarantee of protection for the reporter against retaliation; and responsibility for employees to disclose information to appropriate parties.
Staff reporting internally and in good faith Staff should be able to voice concerns internally in a responsible and effective manner. Staff should be the first point of contact to consider to raise any concerns. A whistleblower policy reinforces the value placed on the staff to be honest and respected members of their professions. Reporting provides a way of addressing bona fide concerns that employees might have. The protection of all staff from victimization, harassment, or disciplinary action as a result of a disclosure. The disclosure is made in good faith and is not made to intend harm or for personal gain.
Guarantee of protection for the reporter against
retaliation All staff members must be knowledgeable about the policy. Reports must be handled correctly by going through the appropriate channels. Management is held responsible to ensure all employees are aware of the policy and understand how to report. Any employee who reports in good faith a violation of the policy will not suffer for retaliation, harassment, or employment consequence. Any employee who retaliates against anyone who has reported a complaint will be subjected to disciplinary action and can lead up to termination. According to Clinton-Essex-Franklin Library System (2009), all violations or suspected violation may be submitted on a confidential or anonymous basis. Reports of violations or suspected violations will be kept confidential to the extent possible, consistent with the need to conduct an adequate investigation.
Responsibility for employees to disclose information to appropriate parties
Employees are entitled to disclose information to a government or law enforcement agency. This would only take place where the employee has a reasonable cause to believe that the information discloses violation of state, federal, rule or regulation. An employer can not adopt or enforce any rule or policy that prevents an employee from disclosing such information. Employers cannot retaliate against an employer for exercising their rights of disclosure. According to the U.S. Department of the Interior (2013), employees who disclose information are fully informed of their rights, responsibilities and remedies under anti-retaliation laws, and provides advisory services and support to whistleblowers.
Conclusion An employee can be dismissed by an employer for any reason under the employment-at-will doctrine. Termination can take place anytime unless it is an illegal reason. Certain cases can be legally unacceptable to dismiss an employee. Three reasons why an individual cannot be fired under employment-at-will is discrimination, whistleblowing, and exercising legal rights. Employees have to act accordingly while on the job as well as off the job to minimize their risk of being dismissed. All employers should have a whistleblower policy available for their employees. Some employees may come forward to report an unethical concern without fear of retaliation. Companies who do not implement a policy can place their employees in fear for abuse. Staff reporting internally and in good faith; a guarantee of protection for the reporter against retaliation; and responsibility for employees to disclose information to appropriate parties are three items that should be included in a whistleblower policy.
References
Beesley, C. (2012). “How to fire an employee and stay within the law.” Retrieved from www.sba.gov
Clinton-Essex-Franklin Library System. (2009). “Whistleblower protection policy.” Retrieved from www.cefls.org
Gallop, J. (2008). “Effective whistleblower policies a must for health care organizations.” Retrieved from http://newenglandinhouse.com
Halbert, T. & Ingulli, E. (2012). Law and Ethics in the Business Environment. (7th ed). Mason, OH: Cengage Learning
U.S. Department of the Interior. (2013). “Whistleblower protection and Ombudsman program.” Retrieved from www.doi.gov