Labor and Employment Law and Economics - Assignment Example

Employment terms definitions Employment contract terms definitions Contract- It is an agreement that is enforceable by law and sets out specific terms and conditions that persons or entities to the agreement must comply with. The agreement must have a consideration which is a promise to do something in return of some specified value benefit. A contract of employment is an agreement between an employee and the employer and sets up the basis of the employment relationship including the pay, holidays, working hours, period of employment and other conditions of employment (Emerson, 2004). The contract can be made in writing or implied from the actions of the parties (Dau-Schmidt, Harris & Lobel, 2009). Express contract and implied contract- An express contract in writing and signing up the terms of the agreement such as the offer, acceptance, contract consideration and legal consequences of the contract by all the parties. On the other hand, implied contract is not done in writing or signing any terms of contract, but it is deemed there is an agreement between the parties (Schulze, 2007). For instance, it may be implied that nurses expect fair compensation for offering high quality health care to the patients (Dau-Schmidt, Harris & Lobel, 2009). Elements of a contract- A valid contract consists of four key elements a. Offer- it is an expression of intention to enter in to a contract or promise to do something to the other party in return of the consideration (Emerson, 2004). b. Acceptance- it is unconditional agreement to the terms of the offer and signals the acceptance to be bound by the terms of the offer in the contract (Schulze, 2007). c. Consideration- This is something of value that each party to the contract receives for entering in the contract (Emerson, 2004). d. Intention to create legal consequences- The parties must intent to create legal obligations and legal consequences for non-performance of the contract such as compensation for damages suffered by the aggrieved party or suits for specific performance (Emerson, 2004). Remedies for non-performing a contract- The aggrieved party can institute a civil suit for award of damages from non-performance by the other party. The aggrieved party can also sue for specific performance or injunction in respect of the breach of the terms of the contract (Schulze, 2007). Employment at will- Employment at-will means that either the employer or employee can terminate the employment contract at any time without any reason and without issuing a notice to the other party (Emerson, 2004). Employment at will ‘fired for cause or for no cause’- The general rule of law in this doctrine is that a person can be fired for any reason or no reason at all. However, there are certain exceptions since individuals cannot be fired on discriminatory basis such as race, religious affiliations, disability or gender. (Schulze, 2007). The employees have certain contractual rights since one cannot be fired if the nurses’ union has entered in to a contract with the health facility and the collective bargaining agreement entails matters like vacation, hours of work and job benefits (Emerson, 2004). The third exception is the covenant of good faith that requires fair dealings in all employment relationships (Schulze, 2007). Employee handbooks and their purpose- It is also referred as employee manual or staff handbooks and is a book that contains information regarding the company procedures and policies such as disciplinary and grievances procedures, leave policies, non-discriminatory policy and compensation policies (Todd, 1999). The employment handbook is not a contract, but employees are expected to abide by the rules and policies contained inside the handbook (Todd, 1999). The handbook is mainly used in employee disciplinary sessions, employee termination and other human resource management activities such as promotions. The handbook may be transferred to employment-at-will contracts under the traditional contract principles (Todd, 1999). Ostensible agent- Ostensible agent is a person who is presumed or given the appearance as to being an employee or acting as an agent on behalf of the principal or employer (Miller, 2006). The use of hospital facilities such as waiting bay and hospital forms may give rise to ostensible agency if a patient relies on such forms and incurs injury from dealing with such persons (Miller, 2006). The patient must have acted in good faith and in belief that the agent derives the authority from the hospital. Ostensible agents work in hospital since doctors or other specialized surgeons may pose as ostensible agents (Miller & Jentz, 2009). Employee of an hospital versus and independent contractor who is employed by the hospital- General rule is that employers are liable for negligent acts and omissions of their employees, but not the negligence of an independent contractor. employees perform their duties as dictated by the employer while independent contracts selects their own tools, hours of working and methods of working (Emerson, 2004). The independent contractor retains control and employer is not liable for the contractor’s negligence. The hospital hires employees since the hospital retains the control of the working methods, working hours and working policies in the hospital and is liable for physician or nurse negligence (Todd, 1999). The hospital also provides additional training in order to improve the competency of the staff (Todd, 1999). In addition, independent contractors can be contracted to provide certain services according to pre-agreed terms, but are not subject to same direction and control like employees of the health facility. Restrictive contracts and their enforceability- This is covenant or clause that one agrees to be restricted by the contract in their professional practice. For instance, former employees may be barred from offering their services within a certain geographical area, city or for a specific minimum period (Schulze, 2007). The covenant prevents actions such as poaching of former employees, soliciting clients from former employer’s database or working for a competitor health facility after the end of employment contract (Schulze, 2007). Restrictive covenants may only be enforceable is the employer is capable of demonstrating that they are reasonable and protect legitimate business interests for a reasonable duration. The reasons is that they prohibit competitors from using the hospital client database, business secrets or benefiting on knowledge that the hospital has spend funds in educating and training the nurses (Schulze, 2007). However, the restrictive covenants must be reasonable since courts will not agree with clauses that limit professional advancement of the nursing practitioners. References: Dau-Schmidt, K,G., Harris, S.D & Lobel, O. (2009). Labor and employment law and economics. Cheltenham: Edward Elgar. Emerson, R.W. (2004). Business law. New York: Barron’s. Miller, R & Jentz, G. (2009). Business law today: comprehensive. New York: Cengage Learning. Miller, R.D. (2006). Problems in health care law. Boston: Jones and Bartlett. Schulze, R. (2007). New features in contract law. MuchenL European Law Publishers. Todd, M.K. (1999). Physician employment contract handbook. London: McGraw-Hill. Waud, C & Chandler, P. (2003). Waud’s employment law: the practical guide for human resource managers, trade union officials, employees and lawyers. London: Kogan Page. Read More