Employment Scenarios 1

Legal Risk and Opportunity in Employment

Legal Encounter 1: Risk for wrongful termination suit in at-will employment agreement

The first scenario involves an at-will terminated employee (Pat) who alleges breach of

implied contract. Pat’s employment was an at-will employee where either party can terminate

employment at any time even without cause. There are several exceptions to at-will employment.

The first is the presence of an expressed contract, the second the presence of an implied

contract, the third is when the employer violates a mandate of public policy or an “implied

covenant of good faith and fair dealing” (Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt,

A.W., 2003, p 1194). An example of an express contract nullifying at-will status is the presence

of an employment contract with a fixed duration of employment.

The second example is the allegation of Pat v. Newcorp , where the company handbook

specifies that he will get a notification of poor performance (CAP) prior to termination. In Meier

v. Family Dollar Services, (Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt, A.W., 2003),

the employee prevailed because the employer failed to comply with the procedures outlined in

the employment handbook. A disclaimer that states that the handbook policies are guidelines

and not contracts can mitigate the company’s liability however Newcorp’s employee handbook

did not have this and Pat believed that the procedures in the handbook for handling performance

problems would be followed.

The third exception applies when public policy mandate is not followed or the employer

violates the good faith/fair dealing doctrine. An example of this exception is the right to file

worker’s compensation claims. If the employee is terminated because they submitted a claim,

wrongful termination would be justified (Muhl, C.J., 2001).

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Although Pat was told that he was terminated due to poor performance, he believes senior

management behaved in an unfriendly way following a school board meeting where Pat voiced

an unpopular opinion. This case is similar to the Supreme Court case of the Board of County

Commissioners v. Umbehr where the petitioner alleged his termination was due to criticisms

from the Board and a violation of his right to freedom of speech. The Supreme Court ruled in

Umbehr’s favor (Oyez Project, 2009).

Legal Scenario 2: Risk for sexual harassment suit

There are two types of sexual harassment cases that have one thing in common – both are

violations of the Civil Rights Amendent of 1964, Title VII. Quid pro quo cases involve the loss

of something tangible (promotion or job). The second type is hostile environment harassment.

This can happen when an employee is sexually harassed and it creates a toxic environment for

the victim (Wendt & Slonaker, 2004).

In Meritor Savings v. Vinson (1986), Vinson had been subjected to sexual harassment

and after her termination she filed suit against Meritor Savings. This landmark decision ruled

that the victim need not be harmed by tangible measures merely creating a hostile working

environment was enough to violate the Civil Rights Act of 1964, Title VII (Oyez Project, 2009).

In the case of the employees from Newcorp and the situation between Sam and Paula,

Newcorp is indeed liable. The company has a duty to prevent employees from committing sexual

harassment. Failure to do so is a violation of the Civil Rights Act. The company is also liable

for retaliatory damages due to Sam’s behavior. Because he is her supervisor and he is preventing

her from transferring to another part of the company, this rises to the level of a quid pro quo

case. The situation is similar to Faragher v. the City of Boca Raton where the Supreme Court

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determined that the employer is liable for any manager who sexually harasses any of his or her

employees.

Legal Scenario 3: Risk for Occupational and Safety Health Administration violations

Under the General Duty clause of the OSH Act every employer is required to provide a

place of employment that is safe from serious harm and severe damage to the employee’s health.

A senior maintenance technician, Paul alleges that he is going to file a suit against Newcorp for

two hazards: working in confined spaces and dangerous noise levels. OSHA is responsible for

determining whether a combined space is not egregiously dangerous. Regulations specify the

requirements necessary for confined spaces. (OSHA, 2009).

Any area that does not meet OSHA safety standards would not be usable as a

workstation. Given the exhaustive list of requirements, Newcorp should be certain that their

supervisor who inspected and approved the safety of the area, is knowledgeable about all the

requirements. Management should review his inspection notes to ensure that they are satisfied

that the inspection was as exhaustive as OSHA’s.

OSHA also sets the standards for noise and hearing conservation. The standards are

specific and stringent. The first requirement is that the noise level is measured and within

recommended limits. Long term hearing loss is a major concerns and needs to be monitored to

maintain acceptable levels. The National Institute for Occupational Safety and Health (NOISH),

under the CDC, evaluates conditions, report noise exposure and help companies correct noise

(Centers for Disease Control, 2010). Newcorp should evaluate whether their noise level is

acceptable. This is crucial since employees exposed to high levels of noise (100 dBA) over a

period of 10 years, will result in 44% of the people exhibiting Noise-Induced Hearing Loss

(NIHL) (Morata, 2007). Statistics are better with lower noise over less time, but is classified as a

Employment Scenarios 4

serious work-related condition by the Bureau of Labor and Statistics. Conversely, companies

with hearing conservation programs in place have fewer employee absences and increases in

productivity. Being proactive about protecting workers from hearing loss due to excessive noise

will benefit Newcorp now and in the future.

Employment Scenarios 5

References

Chan, D. K., Chun B.L., Chow, S.Y., Cheung, S.F. Examining the Job-Related, Psychological,

and Physical Outcomes of Workplace Sexual Harassment: A Meta-Analytic Review.

Psychology of Women Quarterly, Dec2008, Vol. 32 Issue 4, p362-376, 15p; DOI:

10.1111/j.1471-6402.2008.00451.x

Centers for Disease Control and Prevention. (2010). National Institute of Occupational Safety

and Health (NOISH). Retrieved from http://www.cdc.gov/niosh

Mallor, J.P., Barnes, A.J., Bowers, T.L. & Langvardt, A.W. (2003). Business Law: The Ethical,

the Global & E-Commerce Environment (12th ed.). : McGraw-Hill Companies.

Morata, T.C. Promoting hearing health and the combined risk of noise-induced hearing loss and

ototoxicity. Audiological Medicine. 2007; 5: 33-40.

Muhl, C.J. (2001, January). The employment-at-will doctrine: three major exceptions. Monthly

Labor Review.

Muhl, C.J. (2001). The employment-at-will doctrine: three major exceptions. Monthly Labor

Review, 124(1), 3-12. Retrieved from http://search.ebscohost.com/login.aspx?

direct=true&db=f5h&AN=4139182&site=ehost-live

U.S. Department of Labor: Occupational Safety & Health Administration. (2007). Safety and

Health Topics. Retrieved from http://www.osha.gov

U.S. Supreme Court Media. (2009). OYEZ. Retrieved from http://www.oyez.org

Wendt, A C, & Slonaker, W M (Autumn 2002). Sexual harassment and retaliation: a double-

edged sword.  SAM Advanced Management Journal, 67, 4. p.49(9). Retrieved January 11,

2010, from Academic OneFile via Gale. (Document ID: A94465279).

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