Legal risk and opportunity in employment

Employment Law

Legal Risk and Opportunity in Employment

Scenarios: Legal risks and opportunities in employment law

Scenarios: Legal risks and opportunities in employment law

Scenario

In general, unless informed otherwise, most employees are presumed to be hired 'at will.' "Even if your employer does not use the term 'at will,' statements that you can be fired without a good reason are indications that your employer follows an at-will policy" (Employment at will, 2009, Nolo). However, if an employer makes statements, either during the hiring process or afterwards, indicating the employee will be fired only for good cause, such as saying "You'll always have a home here as long as you do a good job" or "We never fire an employee who's performing well" the employee may have a legal case, albeit a shaky one, that he or she was not hired at will (Employment at will, 2009, Nolo). The employee could make a case that an implied verbal, or, in Pat's case, an implied written contract, was broken.

The fact that Pat made such a seismic life change and sacrifice to change his place of employment, coupled with the statement in the employment manual that employees would only be fired after placement on a corrective action plan would support his allegation that he was not hired at will, and there was a legal contract that was broken. While it can be difficult to make a case for restitution of employment, and NewCorp might allege that the requirement that contracts must have a meeting of the minds to be legally valid. In a contract, both parties must understand the contract, agree to the same terms, be engaged in an exchange of value, and the transaction must be legal, and not impossible to perform. The fact the statement was written in the manual might make it easier for Pat to bring a case against NewCorp, suggesting that both parties during the contract understood that unsatisfactory performance would not result in an immediate dismissal at the time his employment contract was signed (Consumer law, 2009, Paralegal Advice).

Pat has stronger grounds for legal action regarding his political demonstration. Even employees hired explicitly at will "cannot be fired for reasons that are illegal under state and federal law," such as for their race, religion, or political beliefs (Employment at will, 2009, Nolo). If Pat can prove he was doing a good job, and his fitness was only questioned because of his political actions outside of the job, and there was no stipulation in the employment contract inhibiting such actions, he has grounds for a discrimination lawsuit.

Scenario 2:

Sexual harassment can take two forms. The most obvious is that of 'quid pro quo' harassment or when an employee demands sexual favors in exchange for a raise, promotion, or retention of the job. There is also a form of harassment called creating a 'hostile workplace' in which innuendos and repeated sexual advances make it impossible for the employee to do his or her job. In this case, Paula alleges that Sam committed both forms of harassment, first making the workplace hostile, and then using the pretence of safety regulations to block her transfer to a different occupation where she would be free from his advances. Paula states that the rationale for the refusal is also violation of Title IIV and EEOC (Equal Opportunity Commission Policy) as it is based merely on the fact that she is a woman and has the potential to become pregnant. Sam's use of his power is also a continuation of his harassment, and now seems explicitly 'quid pro quo.' Not accepting his advances resulted in a negative impact upon Paula's job.

Paula is correct and Sam is incorrect, legally speaking. While fetal protection policies that barred women of childbearing age from jobs because of harm to their potential fetuses became widespread in 1970s and 1980s, the 1991 U.S. Supreme Court ruling in UAW v. Johnson Controls declared these laws to be a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964 (Fetal rights, 2009, Law Library).

Scenario 3:

NewCorp has a strong case that the nature of Paul's employment requires him to work in confined spaces and they are not in violation of his rights. Given that this is an essential aspect of Paul's work, and NewCorp has made reasonable accommodations to give him more space, they are not in violation of the American Disabilities Act, if Paul tries to claim that his claustrophobia is a disability. It is not a violation of the ADA to not hire someone with a disability if the disability interferes with critical aspects of the job.

Paul might have a case that the original location of the machine was dangerous, given that one employee was injured in the old location. If the employee was operating the machine correctly, yet was still injured, Paul could claim that NewCorp was careless regarding worker safety, although the current location has been judged safe by NewCorp inspectors. If the original location was also judged safe, Paul might be reasonably mistrustful of these company inspectors and ask for OSHA to review the safety of the new set-up.