In legal terms, during the later portion of the nineteenth century, “at will” termination, whether initiated by employer or employee, came into focus in the United States.Simply because a person desires to disassociate oneself with the business, whatever it is, for whatever reason, whenever one chooses, is fine and acceptable.This doctrine exists because it is presumed to exhibit and respect freedom from contract.
It applies to the all of “U. S” except the state of Montana primarily because of the belief that employee and employer prefers employment relationship to be “At Will” instead of Job security (NCSC, 2014).
In the following pages I offer nothing more than simple facts, plain arguments and common sense; and have no other preliminaries to settle with the reader, other than that he will divest himself of prejudice and prepossession, and suffer his reason and his feelings to determine for themselves; that he will put on, or rather that he will not put off, the true character of a man, and generously enlarge his views beyond the present day-? Thomas Paine, Common Sense” (Paine, 1779), (Grotto, 1995).
In other words we can debate claims and notions that employment-at-will is all about exacting a contract of redeem and respect, but, wholeheartedly agree, truthfully, that the optimistic picture of equality and freedom is tainted by the continuing subordination and discrimination imposed primarily by employers. Summarization: Employment – At – Will Doctrine The employment-at-will doctrine avows that, when an employee does not have a written employment contract and the term of employment is of indefinite duration, the employer can terminate the employee for good cause, bad cause, or no cause at all (Mull, 2001).
The genesis of this ill-fated relationship began to taking shape when employees started to unionize work efforts and initiatives, albeit for a good cause; employees were at the mercy of employer discretion. The sass gave employees a voice to dispel wrongful actions perpetrated against them, whether it was wrongful discharge based on race, religion, sex, age, and national origin, certain Federal legislative protections, and Title VII of the 1964 Civil Rights Act was available to defend. (Mull, 2001). Allowable Exceptions to Legally Fire. The recognition of employment as being central to a person’s livelihood and well-being, coupled with the fear of being unable to rotate a person’s livelihood from unjust termination, led to the development of common-law, or Judicial, exceptions to the employment-at-will doctrine beginning in the late sass. ” (Mull, 2001) Much of what was contained in the original employment-at-will doctrine developed exceptions that did not fully materialize until the sass. However, have since become subject to erosive statutory and common-law protections all levied against wrongful discharge actions taken by an employer.
In certain instances, the “at-will” dismissal of an employee by his or her employer is halted. There are three established exceptions widely upheld. The first of these is public- policy exception, under which, wrongful discharge is factual if an employee is terminated because he or she files a workers’ compensation claim following a Job related injury, or say the employee is expected to break the law based on an employer’s request. These acts infringe upon adopted public policy of the particular state.
The first case was held in 1959, in California, involving the International Brotherhood of Teamsters and an employee fired because he refused to perjure testimony under oath, as requested. Courts struggled then and continue so, with the meaning of public policy. Some courts in various states found the term “public policy’ vague. The definition differs; limits may include exclusion to clearly defined statements in the constitution or statues, or “public policy is defined to allow Judges rights to determine it a state’s public policy locally or beyond.
Secondly, when terms agreeable to an employer and an employee exchange verbal or written in some form to express terms of security or other procedures, it constitutes an implied contract exception. The employer through conversation and planning implied that if certain actions are carried out then you will remain here or etc. A common occurrence in the recent past was courts finding that the contents and representations made in employee handbooks could create an implied contract, absent a clear and express waiver that the guidelines and policies in such did not create contract rights. Mull, 2001) “The third exception is titled covenant-of-good- and-fair-dealing exception. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception-?at its broadest-?reads a event of good faith and fair dealing into every employment relationship. “(Mull, 2001). A termination may become subject to interpretations. An employer’s decisions motivated by malice are not permissible; done so in bad faith, and thus subject to answering a charge to show “Just cause”.
By 2001, this exception was only recognized by eleven states. Decision and Reasoning to Limit Liability and Impact Operations. Granted when an employee is “off duty’, on his own time, the doctrine offers protection that disallows termination, for what is perceived as unlawful engagement into activities. But, there is an exception to this ruling as well. It states that an employer can basically dictate what activity lawful is and what is not, when it is reasonable related to employment and responsibilities (NCSC, 2014).
Therefore, both John and Ellen committed acts worthy of termination when they violated the statue as defined, John, by posting a rant against an important company customer, and Ellen, when she began a blob that protested the Coo’s bonus. Retaliation provides that employees may engage in proper, legal, necessary, or desirable activity without being fired in retaliation by their employer (NCSC, 2014). Neither Jim in his email soliciting support of others to protest a situation involving a perceived injustice, nor the accounting department secretaries physical stance in protest against a perceived injustice have legal grounding for terminations.
In defense of the employer, Employment-At-Will Doctrine holds no exception that can prevent the company employing Bill from effecting his termination. Joe, having threatened the company with suit for invasion of his privacy is not protected against wrongful discharge under the common law exception of public-policy. The exception allows effusing to break the law at the request of the employer, Joe instead was disciplined for use of company property, to discredit a customer, albeit from his personal account, he also used company time.
Joe received the lesser of what could have resulted in Justifiable termination. On the other hand, the department supervisor is covered under this common law exception of public-policy. To terminate this person the company is poised for legal liability actions. Anna did not choose to participate on a Jury team, she was appointed to do so by the courts. The common law exception f public policy offers Anna protection against termination from employment during her absence for Jury duty; her boss has no choice in the matter except to comply.
Position Recommendation; Pros and Cons of Whistle Blower Policy “Whistle blowing is the terminology that defines the actions of organization employees to bring attention to the wrongdoings happening in the organization. A whistle blowing policy by an organization is a step by the higher level management to keep account of all the happenings in its organization which can possibly cause harm to the organizations. It has become extremely important for large-scale organization to have a whistle blowing policy because it is almost impossible for them to be aware of the complete happening at all levels of their organization. (Dolomite, 2012) In any organization it is imperative to have in place a mechanism by which all know negative matters can and will be resolved. The basic mechanics are already established; the organization is Just fine tuning it for ownership. It should be simple, easy to follow, and ably proven highly effective. Ethical Theory supports willingness to get involved or the greater good of the largest population (Halberd & Inguinal, 2012).
Based on that greater good recommendation is that: the Chief Executive Officer (CEO) form a roundtable steering group comprised of level one, two, and three management and leadership staff to draft a whistle blower policy that, is concise with clear written instructions easily understood, and ensures not a lengthy process (Halberd & Inguinal, 2012) will develop a training program; help employees accept the process and understand it is not about tattling, but more so, building an organizational inundation where each is holding the other accountable (Halberd & Inguinal, 2012) defines the procedures through which an individual will report; develop strict response times for investigation and resolution (Halberd & Inguinal, 2012) The CEO has the burden to set an environment that invites a high level of integrity, accountability, and transparency. When the drafts have gone through legal for lawful compliance review, the CEO and the steering group should hold information sitting for all employees to introduce the new Whistle Blower Policy as a fresh start for all toward ethical, relational, and success values. Further recommend considerations to create a position that oversees training, compliance, reporting, and resolution.
Finally, recommend the CEO become visible and canvas the different areas, inquire to come to know the people, to invite genuine feedback, find out what is going on, where are issues of concerns. The CEO will do well to focus attention to follow-through on any issues shared while out among workers, and to stay abreast of actions pursued by the steering group; make certain they are addressed as the policy is developed. Fundamentals and Rationale of a Whistle Blower Policy. There are critical elements that ensure proper follow-through of any claim from a whistler’s. Integrity is the key of what is disclosed, to who disclosed, and the method that address the issue presented. This policy is instituted to assist those who choose to question what does not appear correct and in accordance with known practice.
The first of three fundamental elements critical to assurance of a Whistle Blower Policy effectiveness provides that, where an individual discloses in good faith, not for malicious or for personal gain, some indiscretion of public interest, they are retorted from factorization, harassment or disciplinary action. Secondly, the issue disclosed will be thoroughly investigated to include interviews of all persons involved. Third, every effort is made to protect the identity of the individual making the disclosure.