Discrimination Cases against Employer - Coursework Example

Last decade has seen an increased number of discrimination cases against employers. Neilson states in his research that in all economically developed democracies, the trend this century has been to temper the traditional liberal theory of employment at-will. The employment at-will doctrine holds that, absent a written contract or collective bargaining agreement, an employer may terminate an employee at anytime for any legal reason or no reason (Nielsen, 1999). Even though at-will employment specifies that employer can terminate an employee without a cause, its scope is limited to generic causes. “Title VII of the Civil Rights Act (1964), protects employees from arbitrary dismissal on the basis of race, color, sex, religion, national origin, age, lineage, pregnancy, military service, and handicap” (Gomes & Morgan,1992). If the reason for termination differs from the aforesaid, all probable claims by employee should be taken into consideration and necessary arrangements should be made before terminating the employee. In Brain’s case, the reason for termination is not apparent as misconduct was not in the workplace and the event was not organized by the company. Dataforce has three options available, if it opts to take action: first it could warn Brain and issue a show cause notice, second it could send Brain on an unpaid leave, and third it can go for termination. Company could ask Brain to resign on his own as voluntary termination, or it could terminate Brain’s employment on its own. However, the company should opt for termination in extreme cases where the cause could not be improved. If termination is absolutely necessary, it is advisable to check legal and managerial implications before deciding to fire an employee. Legally, a company can fire any employee on the basis of poor performance, misconduct, absence from work, violence, consumption of drugs or alcohol, illegal activity and wrong information. Contrarily, the law forbids termination on discrimination based on age, sex, nationality and religion. In special cases, if the company has professionalism policy in place where it specifies expected off –work conduct, it can fire employees on the basis of their conduct away from work. Off-duty conduct law, applicable in some states, also forbids misconducts but, at present its scope is limited to social networks. There are several critical factors that Sally should consider while considering termination. Most importantly, they include Brain’s response to the termination. Brian could ask for evidence and relevance of his behavior w.r.t work. Brian could also make misleading statements to other employees regarding the manner in which termination was communicated. “Wrongful termination claims were most strongly correlated the way workers felt they had been treated at the time of termination and with their expected winnings from such a claim”(Lind, Greenberg, Scott & Welchans, 2000). And in extreme cases, he could also opt for legal response. Secondly, the company should consider impact on company’s performance in Brain’s absence. If Dataforce opts for firing Brian for misconduct first it should consider if Brain’s termination is appropriate regarding seriousness of his misconduct. “Seniority and past commitments of long term employment contribute significantly to judgment of termination fairness and obligation” (Rousseau & Anton,1991).Could there be an alternative to his termination? How has company addressed similar problems in the past? The company’s documentation should be intact and ensure that it had stated termination, in advent of current misconduct, as one of its policies. Also, it should check if there is sufficient evidence available for Brain’s misconduct. And, what should be the company’s approach if Brian successfully clarifies them? Employment policies differ with states; they should be referred properly before taking termination decision. In Brain’s case several factors make decision difficult. These include absence of company policies, misconduct away from work place, missing documentation, satisfactory past performance and Brian’s profile.” Many wrongful discharge suits are filed by professional, managerial, and technical employees, perhaps because the perceived amount or duration of economic or personal loss resulting from termination is high.”(Holley & Walters,1987). Moreover, the upper level staff is financially capable of sustaining a legal proceeding. First is the absence of formal rules disclosure. It has not been mentioned if the company has laid formal policies and has an employment contract for its employees. The only document shown is the welcome letter to Brian. There is no information about employee handbook. If “employee handbook” is present stating the expected conduct regarding Brian’s off-work behavior, the company can use it under “wrongful discharge” claim. “Job security language in employee handbooks can operate to create three forms of contracts: legal, psychological and implied” (Schmedemann & Parks, 1994). Another important issue in this case is the absence of documentation. The two documents that are provided give no clue about misconduct or performance. In fact the performance review strengthens Brian’s position, as it states acceptable performance on Brain’s part. Even in the absence of written employment letter, Brain’s attendance and salary slip can be sufficient evidence of his employment with the company. “Performance monitoring and regular reporting can inform and keep citizens involved in governance” (Wholey & Hatry, 1992). There is no misconduct by him in the past and his performance is rated acceptable. So he could not be sacked on marks of poor performance. Brian’s age is not given, if he is above 40, he will come under age discrimination claim. The evidence in Brain’s case is unclear. Allegations could also be a result of groupthink in the organization. “Just cause for discipline is the most important principle” (Dilts & Moore, 2009). Conduct should be thoroughly studied under the light of past interactions of Brain with other employees. He had been working with Dataforce for long and this incidence should be checked with his previous behavior. Moreover, if the company decides to file a charge sheet, it should be checked whether the persons who were mishandled will agree to disclose their names and act as witness. Looking at the scenario the company should choose to continue with Brain’s employment. And, if the management chooses to terminate him, it could be done pertaining to company’s downsizing policy. There are managerial and legal implications of downsizing. When Top management makes the strategic decision to downsize, two ethics related issues arise. The first concern moral obligation of the top management to act in best interest of the firm. The second concerns the legal obligation of the firm not to violate rights of employees (Hopkins & Hopkins, 1999) Also, if such is the case the company will have to provide severance packages, compensation, and placement assistance. Even in this case the act against discrimination is applicable and any kind of bias should be checked. In some states the state law is applicable regarding downsizing. Before making any decision, applicable state laws should be checked. If company takes a stand on downsizing, it cannot float vacancies for the same post in near future. The impact of termination on other employees should be considered. Brain can defame the company in terms of employment. If the company takes a restructuring or downsizing approach, it should be made apparent to everyone including Brain. If company finally decides to sack Brain the decision should be fast. It should not give him time to prepare for legal action or influence other employees. Company should have a buffer plan to manage work in Brain’s absence. There should not be too much noise about termination and he should be relived respectfully. Also, it should be confirmed that Brain does not disclose important information to Dataforce competitors. A non disclosure agreement elaborating scope and time limit of confidential information serves the purpose, usually it forms a part of employment contract. Non disclosure and non-compete agreements are formal commitment to the signing party. An NDA is a legal contract between you and another party. Typically, you agree to disclose information to them for a specific purpose, while they agree not to disclose that information to anyone else. This allows you to share your trade secrets with business partners while preventing them from passing this information on.(Business link, n.d). While getting a contract agreement drafted and signed it is important to review closely all threats that position’s experience and expertise posses to the employer post employment. Confidentiality of information becomes all the more important in Brian’s profile as it is a managerial profile. The agreement should clearly state that post employment Brain should not aid competitor in contacting the customers Brain dealt while his term in Dataforce. To prevent Brian from causing harm, company can use non-disclosure and non-compete agreements. Conveying termination is equally important. It should take place in presence of a witness. Any kind of argument should be avoided. Also response from Brain should be taken in written after termination. “It is important to retrieve physical items like keys and keycards, disable accounts, and deactivate the employee's access to areas and services that were once privilege. This will prevent them from remotely accessing services and information they should not be” (Harris, 2006). It should be tracked that Brian does not damage any important document or file with him. A study conducted by Bies and Tyler suggests that employee opts for legislation for two factor groups. The first group indicates that “employee consideration of litigation is motivated primarily by self interest. The second group of factors suggest that employees’ decision to go to court is influenced largely by the perceived fairness of their dealings with the organization” (Bies & Tyler,1993). In the later part of their study they have said that the second group is more prevalent and a large number of people go to court for perceived unfair dealings with the company. Wrongful terminations can lead a company waste its time, effort and money in otherwise avoidable legal issues. Extreme care should be taken to avoid post termination damages. Terminations should always be well planned .The mishandling of employee terminations is a major cause of lawsuits and legal judgments against corporations. At best, such cases can tie up the valuable time of dozens of employees and amass giant legal bills. At worst, they can cost you and your corporation millions of dollars and result in irretrievable damage to employee productivity and morale (Jesseph, 1989). And whether they are done for a just reason and to an unpopular employee, terminations always have an impact on other employees and in some cases on company’s reputation. References Bies, RJ & Tyler, TR 1993,’The “litigation mentality “ in organizations: a test of alternative psychological explanations’, University of California,Vol 4, No.3, pp 352-368. Dilts, AD & Moore, JS 2009,’ Do arbitrators use just cause standards in deciding discharge and discipline cases? A test’, Journal of Labor research, Vol 30, No. 3, pp 245-261 Estund,CL, 1996,’Wrongful discharge protection in at-will world’, HeinOnline’s Law Journal library, vol. 74,no. 1, pp 1655. Gomes, GM & Morgon, JF 1992,’Meeting the wrongful discharge challenge: legislative options for small business’. Journal of small business management, Vol.30,No.4,pp 96-105. Hopkins, WE & Hopkins SA 1999,’The ethics of downsizing:Perceptions of rights and responsibilities’, Journal of Business etics, Vol.18, No.2,pp 145-155 Lind, EA, Greenberg, J, Scott, SK & Welchans TD 2000,’the winding road from employee to Complainant: Situational and psychological determinants of wrongful termination claims’, Cornell University, Vol.45.no.1, pp 557-590. Nielsen, LB, 1999, ’Paying workers or paying lawyers: Employee termination process in the United States and Canada’. HeinOnline’s Law Journal library, Vol. 21, No.3,pp 247-282 Rousseau, DM & Anton RJ 1991,’Fairness and implied contract obligations in Job terminations: The role of contributions, promises and performance’, Journal of organizational behavior, Vol.12, No.4, pp 287-299. Schemedemann, DA & Parks JM 1994,’Contract formation and employee handbooks: legal, psychological and empirical analysis’, Human resource management review, Vol. 19, No.2, pp 154-166 Wholey, JS & Hatry HP 1992,’ the case for performance monitoring’, American society for public administration, Vol.52, No.6, pp-604 Business link,’Non-disclosure agreements’, Viewed on 18th March, 2010 http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1074417521 Jesseph, SA 1989,’Employee termination 2: some dos and don’ts’, Viewed on 18th March 2010, http://www.accessmylibrary.com/article-1G1-7329979/employee-termination-2-some.html Read More