Legal Risk and Opportunity in Employment - Case Study Example

Legal Risk and Opportunity in Employment: Case Studies BY YOU YOUR SCHOOL INFO HERE HERE Legal Risk and Opportunity in Employment: Case Studies Legal Encounter 1 Pat will be seeking action in the form of wrongful discharge. Pat was offered this position under the perception that it would be a long-term position, leading him to make significant lifestyle changes in order to fill this position. Under contract theory, the personnel manual makes an explicit statement that in the event of unsatisfactory job performance, there was a series of steps that would be taken prior to discharging the employee. The manual stated that when performance was deemed unsatisfactory, there would be a notification of the specific problem and then put through a corrective action program with a specific timeline of when performance should be improved. All of this should occur prior to termination. The provision inside the personnel manual, under contract theory, suggests that this creates an implied contract that somewhat negates the at-will doctrine of employment. By failing to follow this corrective plan, and instead implying he was under-performing, the employer under most interpretations would have violated their obligations according to performing roles listed in this implied contract. Pat would have difficulty providing any evidence that his dismissal was based on retaliation against his comments made about sports funds, as this was only based on impressions. In this area, the liability of NewCorp is practically assured. The company would argue that Pat has signed an agreement where he would comply with at-will doctrine, thus intending to release NewCorp from any liability. Vermont recognizes the breach of implied contract exception to at-will doctrine (Muhl, 2001). This will likely lead to increased liability on behalf of NewCorp and interpreters in the courts will find that the personnel clause was indeed an implied contract. If Pat can provide evidence that no corrective action program was enacted against him, he will likely be able to succeed in this lawsuit. The legal precedent supporting Pat’s likely victory is the exception rule based on breach of implied contract. In Weiner v McGraw-Hill, 1982, a precedent was set that the employee “must prove the existence of an express limitation on the employers right to terminate at-will” (laborlaws.com, 2000, para.5). The personnel manual contains this limitation. Legal Encounter 2 Sam’s blockage of Paula’s transfer citing issues of potential fetus harm from chemicals would apply to any female in the organization with the ability to reproduce. It is likely that OSHA laws have already been abided by in this area, or they would have to change their processes or simply prevent all female workers from being in this area. It is a weak defense of his actions with nothing but what-ifs to back his claims. Under laws constructed by the Equal Employment Opportunity Commission, Paula is part of a protected class that has certain rights pertaining to sexual harassment. After making the explicit demand that Sam stop any advancements, he persisted, therefore violating these laws. Under this protection, if an employee “receives any tangible employment action because of such harassment, the employer is then liable” (Mathis & Jackson, 2005, p.154). Paula has ample evidence that she tried alternative means to stop advancements, such as documentation showing her request for transfer to a new division, along with any witnesses in the organization that knew of their dating relationship. Further, any witnesses to Sam’s objections about her safety, or documentation of it, would only serve as further proof of her case as supporting evidence. As a figure in a protected class, NewCorp’s liability is significant and would be hard to prove otherwise. There is not much that NewCorp can do except to attempt to resolve the matter outside of the legal system by inciting corrective action against Sam and approving Paula’s request for transfer immediately to see if NewCorp can put the matter to rest and avoid a lawsuit. If Paula’s performance suggests it, offering an incentive such as promotion or performance increase is one way to handle the issue using regular business policies. There is a solid precedent set in this situation with management retaliating against a lower-level employee after ending a relationship. In MARY KELLIE BEAUPRE vs. CLIFF SMITH & ASSOCIATES & another, Ms. Beaupre’s position was upheld by the court for sexual harassment in a similar situation where a hostile environment had been created as a retaliatory effort (masscases.com, 2000). Legal Encounter 3 Under the Occupational Health and Safety Act of 1970, it is a legal requirement for businesses to record and report injuries that occur as a direct result of restriction of work or motion (Mathis & Jackson, 2005). The confined space and maintenance proximity to the equipment within this space made this an obligation of NewCorp. If the company complied with this, Paul’s call to OSHA would lead to an OSHA investigation that would uncover that an injury had resulted from this enclosed working area, adding further support to Paul’s refusal to conduct work there. Under federal or state standards related to OSHA, this agency would defend his decision and demand that NewCorp takes new steps, even if reconstruction was necessary, to avoid another occurrence. They would grant Paul protection until the issue had been fixed and assessed by OSHA representatives and not just NewCorp auditors. OSHA would likely demand a lockout procedure if NewCorp did not move the equipment, preventing maintenance from occurring until resolved. Paul’s defense of being claustrophobic holds virtually no liability for NewCorp considering he knew the conditions of his employment as a worker in confined spaces prior to employment. Any worker’s compensation claim would most surely find in favor of NewCorp. Paul’s intent to sue would likely meet with instant court response to leave the matter with OSHA, acting as the agency required to be a first responder to safety issues. Only if the issue had been previously cited by OSHA representatives, creating what is known as a willful and repeated violation, would the court agree to hear any legal case brought before it by attorneys representing Paul. OSHA will probably demand that the equipment be moved, by whatever means necessary, or demand it locked out until actual construction efforts move the beams to create more space for maintenance or other work. If it is cited once and NewCorp does not take appropriate steps, further citations can lead to excessive fines. If a death were to result because of the confined space issue, NewCorp managers or executives (depending on their knowledge or involvement) could receive a six month jail term for willful and repeated violation (Mathis & Jackson). Federal and state law is clear that NewCorp must take steps to deal with Paul’s refusal and comply with OSHA’s impending obligation to respond to Paul’s call, which will uncover the previous injury. NewCorp should begin examining alternative plans for moving the equipment or drafting a new, small-scale construction project to widen the confined space. References Laborlaws.com. (2000). “Employment at will”. Retrieved April 6, 2010 from http://www.laborlaws.com/block4/item414/ Masscases.com. (2000). “MARY KELLIE BEAUPRE vs. CLIFF SMITH & ASSOCIATES & another”. Commonwealth of Massachusetts. Retrieved April 5, 2010 from http://masscases.com/cases/app/50/50massappct480.html Mathis, R. & Jackson, J. (2005). Human Resource Management, 9th ed. United States: Thomson South-Western. Muhl, Charles J. (2001). “The employment-at-will doctrine: three major exceptions”. Monthly Labor Review. Retrieved April 5, 2010 from http://www.bls.gov/opub/mlr/2001/01/art1full.pdf Read More