Monday, May 11, 2009

Termination: Know Your Rights

The legal definition of termination “…is the discharge of an employee by an employer with or without cause.” [1] There are several factors that could lead to termination of employment: employment at will, agreement, and fulfillment of purpose. Employment at will refers to the ending of employment by either the employee or the employer upon giving proper notice. In legal terms, proper notice refers to the duration of the pay period, i.e., 1 week, 2 weeks, or one month. Hence, the phrase “two-week notice” is derived from this policy. To avoid legal ramifications, an employer should give the reason that led to the termination. That is, the reason for the discharge should be related to the job. The reason for the termination should pertain to job performance, attendance, theft, drug use, harassment, negligence and things of like nature. “Additionally, it might be wrongful termination if an employer discharged an employee in retaliation for:
• Reasonably exercising employee rights under relevant employment and labor laws
• Reasonably exercising union rights
• Legitimately taking leave under the Family and Medical Leave Act
• Serving in the military
• Wage garnishment
• Whistleblowing”. [2]

Besides acts of God, strikes, and layoffs, employers that have 100 or more employees, who intend to lay-off or close a plant or office, are required by the Worker Adjustment and Retraining Notification Act (WARN) of 1988, to give their employees 60 days notice so that the affected employees can have the opportunity to retrain or seek other work. In order to deter confusions and ignorance at the work, employers should create an employment handbook that outlines company procedures and policies. The language outlined in the handbook should be to the point and understandable to all employees. Policies in the handbook should include general rules of conduct; it should plainly delineate anti-harassment policies, describe factors that can lead to at-will termination, and policies regarding computer usage among other things. Breach of contract occurs when an employee fails to fulfill the reasonable expectations as stipulated in the initial contract of employment. Often, breach of contract arises in the following circumstances: (1) an employer will be liable for the duration of contract if the employee is terminated without a just cause before the expiration of the definite period of contract. (2) If an employee performs contrary to the policies contained in the employment handbook, the employer will be bound to what the handbook has stipulated. (3) If in an interview, employer specifies reason for employee’s termination, then discharge will be limited to those reasons. A claimant is ineligible for unemployment benefits if the claimant was discharged for “just cause”. Culpability, knowledge, and control are the three factors that must be present to establish a just cause. In Autilov Asp, Inc. v. Department of Workforce Services 29 P. 3d (UT 2001), Judge Billings representing the Utah Supreme Court ruled in favor of the employer by categorically refusing to the drawing of unemployment benefits by Christopher Guzman and Thomas King because the two complainants flagrantly violated universal standard of behavior by transmitting sexually explicit and offensive materials such as jokes, pictures, and videos which were in contravention of employer policy against sexual harassment contained in its employment handbook. An employee who successfully wins a wrongful termination battle in a legal court, upon justifying beyond reasonable doubt how his/her employer breached existing contractual underpinnings, and after establishing breach of contract theory that include (1) the existence of a contract; (2) its performance of the contract; (3) breach by the other party; and (4) damages, may be entitled to packages that could include severance pay, court fees, and attorney’ fees as damages for the untold suffering inflicted in the cause of the termination and the duration of the court proceedings.

Often, severance pay may be given upon an employee’s promise to forgo a proceeding under Title VII of the Civil Rights Act and/or the Americans with Disabilities Act. There are limits for filing a charge of discrimination. The duration for filing a complaint with the EEOC-the agency charged with overseeing employment rights-is 180 days from the day of the alleged violation. “This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days. The federal EEO laws enforced by the EEOC are Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA). These laws prohibit covered employers from discriminating on the bases of race, color, sex, national origin, religion, age, and disability. Examples of conduct prohibited include: Discriminatory employment decisions, discrimination in employment and benefits, harassment and retaliation.” [3] In many cases, employee and employer may opt to resolve a charge early in the process through mediation or settlement. According to the EEOC web site, mediation and settlement are voluntary resolutions.
Mediation, settlement, and conciliation are three factors to resolving charges of discrimination. Despite the proliferation of termination related litigations against employers by grieving employees, Daniel T. Berkley, Gordon & Rees, LLP, in a teleconference titled “Avoid Wrongful Termination Lawsuits: Strategies to Keep Your Managers Out of Legal Trouble” and designed for “human resource managers, personnel managers, employee relations managers, presidents, vice presidents, business owners and managers, supervisors, compliance officers and attorneys”, detail four appealing factors that could serve as a deterrence against unnecessary legal actions for those managing workplaces. In their sub-title “Training for Effective Workplace Policies and Practices”, the duo provide educational materials that come in the form of CD and manual together with a podcast containing 89-minute MP3 with 90-page electronic manual. Some of topics covered in their management lectures include:
I. Progressive Discipline
II. Investigations
III. Retaliation
IV. Termination”. [4]

In conclusion, since the creation of the Civil Rights Act of 1964, Labor courts in the United States continue to be inundated with civil law suits. Consequently, Congress has been rationally making amendments to the U.S. Constitution since the proclamation of Independence from England in 1776. Despite the hardships and arduous contests in the stipulation of U.S laws by the Judiciary, Legislature, and the Executive, profound promulgations have been made to pave way for the reclamation and restoration of human independence and dignity.

[1]John Jude Moran. Employment Law: New Challenges in the Business Environment. Upper Saddle River, New Jersey. 2008.
[2]http://employeeissues.com/wrongful_termination_2.htm
[3]http://www.eeoc.gov/charge/overview_charge_filing.html
[4]http://www.lorman.com/teleconference/384409?affiliate=WorkersCompensation&cd=16196:0:1:4:13&discount_code=

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