Employment Law for Global Employees - Essay Example

Shewin Memorandum CAUSE OF ACTION ELEMENTS SUPPORTING A CAUSE OF ACTION FACTS SUPPORTING OR DISPUTING ELEMENTS OF CAUSE OF ACTION ANY ADDITIONAL INFORMATION Discrimination because of sex, age, and race . The company has fewer women on upper level of management contrary to legal requirement that the number of women in a company should exceed that three. . She has not been promoted for 6 years. . The company employer makes sexist remarks against women. . She is 40 year of age but has not been promoted contrary to the employment law that elderly employees should be subjected to favorable treatment. .She is African American hence has not been considered for a promotion. . Blabber newspaper has only 3 women on upper level of management. . She has worked in the company for a period of 6 years without promotion yet Whiz who is only 26 years of age and with inadequate experience has been offered the post Shewin applied A 26-year-old new recruit by the name of whiz was considered for position she also applied . Senior employees in the company have been heard speculating on when she will retire. . The company only has five African American employees. . Question of Locusstandiis requisite in bringing this cause of since the level and type of engagement between Miss Shewin and the company must be ascertained to enable the court to hear her case. . Remedies available for Miss Shewin in an event of success of his case Sexual Harassment Crude sexual behaviors Ill language against pregnant women Miss Shewin’s interview at the restaurant did not dwell on professional issues but were majored on social questions . Male employees in the company discuss social issues including sexual experiences with their girlfriends over the weekend, which is not checked by the company managers despite protest by Miss Shewin. This case instance presents a critical analysis of rights of employees in a work premise as accorded by law. It details a brief operation of the America legal system to facilitate a proper understanding on how to tackle this legal issue. The American labor and employment laws are sourced from a variety of legal sources, including, constitutional law, statutory law being rules extracted from statutes, administrative regulations, and common law, which includes unwritten customs, principles and rules and case law (Hart 56). These sources are available on different levels, including: - federal and state constitutions, federal and state statutes and administrative regulations by both federal and state agencies, case law by both federal and state courts. In other circumstances however, these laws can be extracted from municipal laws as well. This therefore presents job places with often challenging circumstances of legal requirements and obligations that do not always align (Patterson 98). In case of a conflict or inconsistency between federal and state law, then the law that establishes stricter standard supersedes that whose penalty is less strict. In case of a conflict that cannot be resolved by application of the stricter standard, then the federal law preempts the state law (SS). Miss Shewin case elicits several issues under laws of employment including, discrimination on gender basis, race, sexual harassment of workers as an affirmative action and the extent which the law protects employees in a working place. It is significant to commence this discussion by establishing if Miss Shewin has sufficient locus standi to bring legal complaint against the Blabber newspaper. Locus standi is the legal right to bring an action, to be heard in court, or to address the court on a matter before it. It is the ability of a party to demonstrate to the court sufficient connection to and harm from the action challenged to support that party’s participation in the case. Locus standi in this case can be traced from the legal relationship that existed between Miss Shewinand the Blabber Newspaper. It must be traced if there was a legal contract between the two parties and if the same stipulated terms and conditions (Backer web). The conditions dictated the operation of Miss Shewin in the company and if issues regarding her promotion and steps that are followed in the event of the same were correctly provided for in the contract. This will allow Miss Shewin to possess sufficient capacity to sue the company. Written employment agreements in United States is not mandatory as compared to other places in Europe with non- U.S jurisdiction. Employee’s employment contracts are optional, and are not used for middle management and lower level employees. Instead, it is common to use a short “at will” offer letter with these employees (Fleck web). Employment contracts are commonly used for high-level executives or key employees, i.e. when an executive has negotiated specific terms and conditions of employment that are provided for in an “at-will” employment relationship (Backer & Mackenzie, 11). An exception to the “at-will” employment doctrine is a contract, which limits the absolute right of the company and the employee to end the employment relationship. It follows therefore that a company and an employee may negotiate an employment contract that stipulates limits on the scenario under which his employment may be terminated (Slorach and Elis 34). Such a contract may be for a specific duration or may provide that employment can be terminated only for good cause or just cause (Ibid). In this case, instance, Miss Shewin is merely a senior level reporter, she does not hold a senior position, and therefore her employment is not mandated under an employment contract. It follows therefore that the policies that regulates her engagement with the company are similar to the general policies that dictates the rights of other junior employees under employment laws she therefore posses the legal standi to bring a claim against the company. Miss Shewin can argue that she has been subjected to discrimination based on her race, age, and sex. Being an African American, she is supposed to be treated in equal measures as other employees. The fact that her failure to pass the interview was based on the fact that she was an African American is clear discrimination and contravenes the Employment laws which prohibits discrimination on the account of race. American Federal law prohibits discrimination against any employee and applicants based on a person’s race, color, religion, sex (including disclosure of sexual orientation), national origin, age (for those aged 40 or older), disability or genetic information (Hg). In this case, Miss Shewin is entitled to proper treatment including being subjected to equal and better working conditions as accorded to other employees. The majority of prohibitions of discrimination on account of race inter alia are found in a statute commonly known as Title VII of the Civil Rights Act of 1964 (“Title VII”) (Ibid). Discrimination because of age is also prohibited by the law referred to as ADEA. Being 45 years old and approaching the mandatory retirement age bracket, Miss Shewin should have be considered for the job of the junior editor as compared to the 26 year Gene Whiz who lacked job experience and came from small local newspaper company. Federal employment discrimination laws are broad in scope and protect all types of workers starting from those who have contracts, those who are employed “at-will,” and even those covered by collective bargaining agreements. Title VII, the ADEA, apply to all terms and conditions of employment – from the time of hire to the time of the employee’s termination, and not virtually all aspects of employment in between limited to promotions, training, wages, and benefits (Hg). Miss Shewin can also argue that she has been discriminated because of her gender, being a qualified person and woman in a company, which comprises of large number of male employees. It is reasonable that having worked for the company for a period of more than 10 years, she is entitled to proper promotion to the position of a junior editor. Some states provide greater protection compared to others, therefore the laws that regulates the conduct of this case against the company will largely be based on the laws of the state under which the company is located. However it is significant to indicate that some state laws are broader than federal laws and are equally applied in case instances that is similar to the one at hand (Backer & Mackenzie, 25). Examples of state laws that are broader than federal law include those that prohibit discrimination based on marital status or sexual orientation; the above-mentioned instances can therefore be applied in Miss Shewin’s circumstance. Miss Shewin can equally argue that she has been sexually harassed on several occasions by senior employees in the company. Mr. King for instance, was notorious in starting up conversation by engaging in seemingly harmless social banter, making Shewin to be uncomfortable with his personal questions about her relationship with her boyfriend. He also once asked Shewin out to "discuss business," invitations that she has declined. In addition, prior to Mr. Doright's transfer, Shewin filed a complaint against some of her male colleagues whose cubicles were surrounding Shewin's area and who had the habit of discussing their weekend dates in graphic detail on Monday mornings. The above occurrences amounts to sexual harassment and can warrant Miss Shewn a sufficient ground to commence a civil claim against the company. Federal, state, and local discrimination laws illegalize harassment of employees based on the various protected categories. Harassment on the basis race, color, religion, sex including pregnancy, national origin, age, disability and genetic information is defined as unwelcome within the confines of verbal or physical conduct relating to those categories, when: 1. It is submitted that such conduct is made either an explicit or implicit condition of employment or is used as the basis for an employment decision affecting the harassed employee; or 2. The harassment unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or offensive working environment as was experienced in Miss Shewin scenario. Harassment can take the form of slurs, graffiti, offensive printed or visual material, offensive comments, or other verbal or physical conduct. Sexual harassment including unwelcome sexual advances, unwelcome physical contact, requests for sexual favors, and other conduct of a sexual nature are serious legal issues, which must not be condoned in a work place according to the employment laws. The legal remedies available for Miss Shewin against the company are numerous. An employer that breaches an individual employment contract and subjects an employee to discrimination and harassment may be liable for the amount of damages that would place the employee in the same monetary situation in which he or she would have been had the employer fully performed the contract or would have subjected him or her to reasonable treatment. Unfair treatment can easily facilitate resignation of an employee and thus court must protect her against the same (Austin 45). Employees also have a corresponding duty to mitigate their own damages in an event that the company agrees to compensate them without subjecting the case to litigation. For those U.S. employers who have integrated workforces, different laws govern unionization since they are merely on voluntary basis and are governed by federal labor law. If a certain workforce in the United States is unionized, the company and the union will negotiate and enter into a collective bargaining agreement that sets the terms of employment for all employees in the bargaining unit the union represents (Ibid). Works Cited Austin, John. Province of Jurisprudence determined (1832). London: John Murray, 2006. Print. Backer, Mackenzie: U.S Employment Law for Global Employees (2011): 11-26 Fleck, Margaret. Employment Law- Guide to labour law. 2011. Web. April 20, 2013 < http://www.cs.hmc.edu/~fleck/equal-employment.html> Hart, HLA. Concept of law. Oxford: OUP Oxford, 2012. Print. Patterson, Dennis. A companion to philosophy of law and legal theory. New York: john Wiley & Sons, 2010. Print. Slorach, Scott and Elis, Jason. Business law 2007-2008. London: Oxford University Press, 2007. Print. Read More