Legal Encounter 1:
Newcorp hired Pat Grey as manager of real property for Newcorp in Vermont, responsible for activities related to maintaining leased office space. In that role, Pat supervised 51 employees and lower-level supervisors, and dealt with tenants who leased commercial space. For the job, Pat relocated from another city 300 miles away, moving his spouse and children, selling and buying a home, and dealing with a spouse having to quit her job to seek employment in the new state.
After Pat had been on the job for three months, his boss explained that things did not seem to be working out, and said that Pat would be discharged with 30 days severance pay. Pat was surprised because his employer gave no indication of any problem on the job. Newcorp's Personnel Manual, which had been provided to Pat upon his acceptance of employment, outlined the process for dealing with unsatisfactory employees:
Notice of Unsatisfactory Performance/Corrective Action Plan
If the job performance of an employee is unsatisfactory, the employee will be notified of the deficiency and placed on a Corrective Action Plan (CAP). If the employee performance does not improve to a satisfactory level within the specified period of time, termination will follow.
Pat acknowledged that upon employment, he signed an understanding that the company observed employment at will with respect to employment and discharge, but believed that the above provision limited Newcorp's freedom to fire him at will. Finally, Pat observes that Newcorp senior management was "noticeably unfriendly" after Pat had been vocal at a local school board meeting. In the meeting, Pat insisted that school sports funds should be equally allocated among all student athletic programs, not just concentrated on the boy's football and basketball programs. His position on the matter was unpopular, and although no one at the school board meeting identified Pat as a Newcorp employee, he believed that this contributed to the Newcorp decision to discharge him.
What liability and rights, if any, do Newcorp or Pat have in this situation? What legal principles (statutory or case law) supports those rights and liabilities? Remember to limit your answer to 250 -300 words.
Several U.S. courts have implied that a contract can exist because promises, procedures, and policies are present in an employee personnel manual.Courts have held personnel manuals to form, in both an expressed and an implied sense, employee contracts or to become part of employee contracts when employers give them to employees at the start of employment. One of the factors that establish whether a personnel manual and its terms form a contract is the reliance of an employee on its procedures and terms (Jennings, 2006).Pat therefore has the right to sue based on the breech of the implied employment contract inherent in the Notice of Unsatisfactory Performance/Corrective Action Plan of Newcorp's Personnel Manual.
Starting in the late 1960s, the United States Supreme Court ruled that employees of the US government could not be terminated in retaliation for the exercise of free speech.The courts have now expanded these concepts of free speech, privacy, and related constitutional protections to private employees in certain instances, especially in states that have passed broad civil rights laws. For instance, in some states, a private employer cannot punish, fail to promote, or terminate an employee because the company disagrees with the employee's remarks on issues of public concern. A majority of states have enacted laws that bar employers from influencing which way their employees vote. There are also state laws that prohibit employers from regulating the off-duty legal conduct of employees. The right of an employee not to be demoted, retaliated against, or fired for engaging in such legally permitted activities depends on laws of the particular states in which they live (Sack, 1998).
Pat may have the right to sue for wrongful termination if NewCorp is located in a state which has laws governing the legal activities of employees occurring off the employer's premises. To avoid a wrongful termination lawsuit, NewCorp should seek a mutually satisfactory resolution of the current case with Pat via an alternative dispute resolution (ADR) method such as arbitration or mediation. To avoid such liabilities NewCorp should establish and strictly adhere to clear performance review policies. (350 words)
Legal Encounter 2:
Newcorp employed Sam as a supervisor of electrical manufacturing for auto under-dash wiring harnesses. Sam's department employed about 100 men and women to create the wiring, coat it with various insulators, and then connect it to different types of universal couplings so car speedometers, oil gauges, and other instruments would work. The final product, an under-dash wiring harness, was sent to the final assembly plant for installation in cars.
Sam developed a relationship with one of his female employees, Paula. They began dating and it turned into a torrid affair that included frequent trysts at the workplace. Paula later met and began dating a man who did not work for Newcorp, and thereafter ended the affair with Sam. Sam did not give up easily and continued touching Paula and exhibiting a variety of other unwelcome behaviors, even after Paula clearly told him to stop. Sam suggested that Paula's work might be suffering from a "lack of interest" on her part, and since she stopped dating him, she seemed to lack interest in work quality.
Paula decided to get away from Sam, and applied for a transfer to the wire-coating section, which would not be directly under Sam's control. Sam blocked the transfer, citing company policy that there was evidence that the chemicals used in wire coatings could harm an early-state fetus being carried by a newly-pregnant woman. Because Paula was a young woman who could become pregnant, Sam argued, Newcorp could not take the chance for Paula to work in wire coating due to the possibility of Newcorp liability for a resulting birth defect. Paula believed this was probably Sam's way of keeping her under his thumb, and that even if it was not, it was discrimination based on sex and therefore illegal.
What liability, if any, does Newcorp have in this situation? What can and cannot Newcorp do? In your answer, identify what legal principles (statutory or case law) support your belief. Remember to limit your answer to 250 - 300 words.
Sam's conduct is an example of a sexual harassment which raises the possibility of quid pro quo suit, where an employee is required to submit to sexual advances in order to remain employed, or secure a promotion or a raise. His conduct has made NewCorp also liable for an atmosphere- of-harassment case, in which the invitations, language, pictures, or suggestions become so pervasive that they create a hostile work environment (Jennings, 2006). In 1986 the Supreme Court ruled that sexual harassment was actionable under Title VII of the Civil Rights Act of 1964. The Supreme Court in Harris v. Forklift Systems, Inc., in 1993 made it easier for plaintiffs suing for sexual harassment by ruling that they were not required to prove that any abusive conduct actually caused an injury or affected the person's psychological well-being. Attorneys for such plaintiffs now only have to prove that a "reasonable person" would have found the conduct to be offensive to win their case (Sack, 1998).Thus Sam's behavior which created a hostile working environment for Paula put NewCorp at risk of sexual harassment lawsuit from Paula.
Sam's later action of blocking Paula's transfer, if deemed that he took it as an agent of NewCorp and especially in a supervisory role, made NewCorp further liable for violating the Pregnancy Discrimination Act (PDA). The PDA is a statute passed in 1978 that amended Title VII, the central federal anti-discrimination statute. Later in 1991 in the case of International Union v. Johnson Controls the Supreme Court ruled that employers cannot ban women from certain hazardous jobs based on the premise that women are fertile and might get pregnant, and the job may cause birth defects in the fetuses those female workers may be carrying. The court held that such a ban would be a violation of the PDA (Grossman, 2003). The law has left the choice of taking a hazardous job to the woman as hers to thus, NewCorp is bound by law to allow Paula to make her own informed decision or face a sex discrimination lawsuit. (345 words)
Legal Encounter 3:
NewCorp employed Paul as a senior maintenance technician, which required him to work in confined spaces to repair equipment. Paul called OSHA to complain about NewCorp requiring him to work in a dangerous situation.
Repair of the pulp shredder was particularly difficult because the space in which Paul worked was very narrow and the machine noise and vibration irritated Paul when he turned the machine on and off during repairs. After one employee was injured while working on the machine, NewCorp moved the machine a little to create more working area, but nearby building support beams allowed little movement for the machine.
Paul refused to work on the machine, saying that it was still too confining and dangerous. The safety manager for NewCorp reviewed the area and deemed it safe. Paul also said that he became claustrophobic because of working in such confining spaces, and that this condition arose out of his employment, making it a worker compensation issue. In addition to calling OSHA, Paul threatened to get a lawyer and sue NewCorp.
Congress passed the Occupational Safety and Health Act of 1970 requiring employers to provide a safe and healthful workplace. The Occupational Safety and Health Administration (OSHA) is the federal agency that enforces this law (Jennings, 2006). Employers cannot take any retaliatory action against employees when their complaints result in an OSHA inspection of the workplace. If NewCorp fires, demotes, or discriminates against Paul for registering an OSHA complaint, Paul can file a complaint and the Department of Labor can then pursue his rights in federal district court. The courts have accorded protection to whistle-blowers who report illegal conduct and to those who refuse to participate in conduct that is illegal or that violates public policy(Jennings, 2006).
Furthermore workers' compensation laws will provide wage benefits and medical care to Paul if unsafe work conditions at NewCorp make him a victim of any work-related injuries. If the injuries originate in the workplace, are caused by the workplace, or develop over time in the workplace Paul will be entitled to compensation from NewCorp. Even stress, when shown to be caused by or originated from employment, is a compensable injury, thus if NewCorpcauses Paul's claustrophobia to surface by forcing him to work inside the confines of the pulp shredder they can become liable for medical care and any pay that Paul loses during his recovery(Jennings, 2006).
NewCorp should diffuse the conflict with Paul using an ADR method to avoid protracted and expensive legal remedies and also hire an OSHA expert as an employee to institute and run an OSHA compliance program. (263 words)
References
Grossman, J. (2003, January 28). IF employers don't provide insurance covering
fertility, are they guilty of sex discrimination? A federal appeals court says no. Retrieved January 26, 2009 from
Jennings, M. M. (2006). Business: Its legal, ethical, and global environment (7th
ed.). Mason, OH: Thomson.
Sack, S.M. (1998).The working woman's legal survival guide. FindLaw.com.
Retrieved January 26, 2009 from