This document discusses employment law regarding hiring, discipline, and termination. It covers the employment-at-will doctrine and its exceptions, such as public policy considerations. Reasons for termination include poor performance, misconduct, and financial necessity. Employers can reduce wrongful termination risks through clear policies, disclaimers, thorough hiring processes, documentation, and progressive discipline. Unemployment benefits may be denied for misconduct like theft or threats. The chapter aims to balance employee and employer rights in termination decisions.
3. Employment-at-will Doctrine – I
• Employment-at-will doctrine provides employment is
at will of employer or employee.
• Employment may be terminated either at any time
– for any or no reason
– unless a contract in place specifying terms &
duration of employment.
• Historically, termination of employees for any reason
widely accepted.
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4. Employment-at-will Doctrine – II
• Growing trend toward a restricted application
of the at-will employment rule whereby right
of an employer to discharge at-will employee
without cause
– limited by either public policy considerations
– or implied covenant of good faith & fair dealing.
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5. “…obvious and indisputable fact that in a civilized
state where reciprocal legal rights & duties
abound, the words "at will" can never mean "without
limit or qualification," as so much of the discussion
and the briefs of the defendants imply; for in such a
state the rights of each person are necessarily &
inherently limited by the rights of others & the
interests of the public. An at will prerogative without
limits could be suffered only in an anarchy . . . .
Sides v. Duke Hosp.
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6. Employment-at-will Doctrine – III
• Fairly balancing rights of employee & needs
of organization complex objective
• Chapter provides some direction in this
balancing act
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7. Employment-at-will Doctrine – IV
• Embroiled in combination of legislative
enactments & judicial decisions.
• Some states more employer oriented.
– e.g., New York
• Other states in harmony with constitutional
rights of employee.
– e.g., California
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8. Public Policy & Wrongful Discharge
• Public Policy
– policy exception to employment-at-will doctrine
provides employees may not be terminated for
reasons contrary to public policy
– public policy originates with legislative
enactments
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10. Public Policy Issues – II
• National origin
• Pregnancy
• Filing of safety violation complaints
– e.g., OSHA
• Union membership
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11. Public Policy Issues – III
• Asserting Legal Rights
Whistle-blowing
Reporting Patient Abuse
Child
Elder
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12. Termination
• “For Cause” in Employment Contracts
• Financial Necessity
• Hostile Attitude
• Improper Billing Practice
• Poor Work Performance
• Alcoholism
• Insubordinate Behavior
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13. Termination & Damages
• Damages can be awarded for
Wrongful Discharge
tort
contract
Emotional Distress
Punitive Damages (not all cases)
clear and convincing evidence
employer acted with malice
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14. Retaliatory Discharge
• People in Power Can Abuse that Power
Threats
Abuse
Intimidation
Retaliatory Discharge
Interference with Employment Activities
Defamation Actions
Case: Retaliatory Discharge & Emotional
Distress
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15. Fairness: The Ultimate Test
• Fairness is the Ultimate Question
• Implied Covenant of Good Faith
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16. Defending a Claim
Unfair Discharge - I
• minutes of pertinent meetings
• written reports, typed or handwritten
• personnel file
• tapes (e.g., audio, video)
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17. Defending a Claim
Unfair Discharge - II
• letters, cards, and handwritten notes written on
the employee’s behalf from the public
• personnel handbook
• personnel and departmental policies and
procedures books
• oral testimony from fellow employees and
supervisors
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18. Employment Disclaimers - I
• An “employment disclaimer” is the denial of a
right is imputed to a person or that is alleged to
belong to him or her
• Be sure employee handbooks do not appear to
be an implied contract
• Disclaimers must be clear
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19. Employment Disclaimers – II
Example of “disclaimer” language
1. Management reserves the right to make any changes
at any time by adding to, deleting, or changing any
existing policy.
2. The rules set out below are as complete as we can
reasonably make them. However, they are not
necessarily all-inclusive, because circumstances that
we have not anticipated may arise. Some currently
unanticipated circumstances may warrant the
application of discipline, including discharge.
3. Management may vary from the above policies if, in
its opinion, the circumstances require.
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20. Effective Hiring Practices – I
• Clear Policies & Procedures
– hiring
– disciplining
– Terminating
• P & Ps & Handbooks
– reserve right to
• add
• delete
• revise
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21. Effective Hiring Practices – II
• Application
• Background checks
• Familiarity with state laws
• Interviews
– human resources
– supervisor
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23. Effective Hiring Practices – IV
• In-service education programs
– interviewing techniques
– performance evaluations
– disciplinary actions
• Contract language
• Case: Job Description Not an Employment
Contract
• Case: Employee References Valuable
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24. CLEAR COMMUNICATIONS
• Communicate clearly to prospective
employees
– employment is at will
– employment can be terminated at any time
• Handbooks & personnel manuals
– fair & unambiguous standards
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26. REVIEW QUESTIONS - I
1. Discuss employment at-will doctrine.
2. Is employment-at-will doctrine appropriate
in today's society? Discuss your answer.
3. What are pros & cons of employment-at-
will doctrine?
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27. REVIEW QUESTIONS - II
4. What are public policy exceptions to
employment-at-will doctrine?
5. Discuss questions the employer (supervisor)
should ask prior to discharging an employee.
6. Discuss legitimate reasons for terminating
an employee.
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28. REVIEW QUESTIONS - III
7. Discuss why employment disclaimers are important
to the employer.
8. Discuss what actions an employer can take in order to
help reduce the necessity for discharging an
employee.
9. Discuss under what conditions unemployment
compensation can be denied to a claimant.
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