Legal Risk and Opportunity in Employment - Essay Example

Running Head: LEGAL RISK AND OPPORTUNITY IN EMPLOYMENT Legal Risk and Opportunity In Employment Legal Risk and Opportunity in Employment A Legal Encounter 1 In the present case, Pat has the right to contest his dismissal in court for breach of contract. According to several cases in the US jurisdiction, provisions in an employee handbook pertaining to the process of termination or dismissal of employees may be considered an implied contract (Kaplin & Lee 266). The Newcorp Personnel Manual, which was given to Pat at the time he joined the company specifically describes a progressive disciplinary action that precedes any dismissal decision. The procedure prescribed in the manual includes notification of deficiencies and undergoing a Corrective Action Plan. According to the manual, it is only the failure of the employee during the CAP that warrants employee dismissal. The present situation finds parallelism to the case of Ferguson v Host International, Inc. 53 Mass App Ct 96, where the plaintiff’s employee dismissed him immediately after a short verbal tussle with a customer. The dismissal was done without extending the plaintiff the opportunity to explain his side and in violation of the employees handbook’s prescription of progressive discipline where an erring employee is to be granted two warnings before finally terminated on account of a subsequent violation after the warnings. The Court held that the employee manual implicitly granted some contractual rights to the defendant’s employees and that therefore its progressive dismissal procedure should have been followed in the termination process despite the fact that it contained a specific disclaimer for any contractual intent. Newcorp’s dismissal of Pat therefore, has opened it to a charge of civil liability arising from breach of contract or for failure to perform its obligations under the contract impliedly formed by the employee manual. This is, notwithstanding that Newcorp explicitly informed Pat at the start of his employment that it was an at-will kind. In the case of Obrien v New England Tel. & Tel. Co., 422 Mass 686, the Court explained that the efficacy of the principle of contractual disclaimer is overcome by the reasonable expectancy that the manual instills in the employee that the employer will follow the handbook’s provisions. B Legal Encounter 2 Newcorp, as an employer, is liable for sexual harassment occurring within its workplace as per the Equal Employment Opportunities Commission guidelines of 1980. Sexual Harassment is defined by EEOC as advances, conduct, requests of favors, all of sexual nature, whether verbal or physical, additionally qualified by the following: they are made conditions of employment; they are made the basis of employment decisions, and; their general effect is to create a hostile environment for the employee or disturb such employee’s work. Subsection 1604.11 of the said guideline specifically obligates the employer to take responsibility over sexual harassment cases, mandating it to take steps for prevention of sexual harassment by highlighting its importance to employees, making known to them its strong disapproval of it and creating sufficient and appropriate mechanism not only for sanctions against erring employees but also for victims’ complaint procedure (Jasper 50; Zippel 173-174). In the present case, Sam’s behavior, i.e. physical touching, verbal insinuations, towards Paula are classifiable as sexual harassment as they are sexual in nature, and unwelcome after Paula severed her relationship with Sam. Such advances and behavior have become unbearable to Paula that she wanted to transfer to another section where Sam does not have supervisory power over her. Clinching the sexual harassment aspect of this case is the fact that her failure to transfer to another section is due to Sam’s unfounded objection. Granting that the wire-coating issue is true, Paula is not disqualified because first, she is not pregnant and second, she is not normally expected to be because of her single status. In a case like this, Newcorp must support Paula and inform her of her right to file a sexual harassment case against Sam under the company’s grievance procedure and if, her claim is found to be true, subject Sam to the appropriate disciplinary measure. The company must also allow Paula to transfer to another section where she will be at ease with her surroundings and where she can work without worrying for her safety and well-being. C Legal Encounter 3 The health and safety of workers within the workplace and during the course of work is primarily governed by the Safety and Health Act of 1970 on the federal level. Three government agencies are tasked with its implementation: the Occupational Health & Safety & Health Administration; the National Institute for Occupational Safety & Health, and; the Occupational Safety & Health Review Commission (Salvendy 1162). The Act obligates the employer to ensure the safety of the workplace from “recognized” hazards materials. The implication of the word “hazard” is the requirement of a regular updating of knowledge on what constitutes hazardous materials. Certain materials thought innocuous before are subsequently found to be actually posing hazard. Penalties for violation of the health and safety law include substantial fines and ultimately closure (Salvendy 1163). In the present case, Newcorp may be liable under the SHA1970 if Paul’s claims are found to be true. Under the safety and health standards of the OSHA, the employer must protect its workers from noise exposure the sound level of which exceeds a certain decibel through a hearing conservation program. The determination of the noise level should be conducted only by an expert certified by the Council of Accreditation in Occupational Hearing Conservation. In addition, the employer should ensure structural integrity of the workplace, with the law prescribing a minimum weight or pressure with which structures should be capable of holding (OSHA Regulation Standards, 1910.95, 1910.23). The laws related to working compensation significantly vary from state to state, but there are common factors in the entitlement of the compensation: injury to the worker claiming, the work done in the workplace is the direct cause of the injury, and; the injury was sustained in the course of the worker’s employment. It is a no fault system which means that an award is not dependent on the existence of fault but on the qualification of the employee and the aforesaid circumstances. If Paul’s claims are found to be true, then he has grounds for claiming under the workers’ compensation (Kaplin & Lee 320). . References Kaplin, William & Barbara A. Lee. The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Mmaking, Edition: 4, revised. John Wiley and Sons, 2006. Jasper, Margaret. Employment Discrimination Law Under Title VII., Ed: 2, illus, rev. Oxford University Press US, 2008 OSHA Regulation Standards. United States Department of Labor. Osha.com. http://www.osha.gov/comp-links.html. Salvendy, Gavriel. Handbook of Industrial Engineering: Technology and Operations Management, Ed: 3, illus. Wiley-IEEE, 2001. Zippel, Kathrin S. The Politics of Sexual Harassment: A Comparative Sstudy of the United States, the European Union, and Germany, Ed: illus. Cambridge University Press, 2006 Read More