Employee In Violation Of An Implied Employment example essay topic

Introduction The doctrine of employment-at-will emerged in the nineteenth century in the United States in a climate of unbridled, laissez-faire expansionism, social Darwinism, and rugged individualism. It is often referred to as Wood's Rule, named after Horace C. Wood, who articulated the doctrine in an 1877 treatise Master and Servant. No doubt the title of the treatise says all that need be said regarding Wood's view of employment relations and, unfortunately, the view shared by most of his legal contemporaries (Mauk, 1985). According to Wood, an employee must be free to quit at any time, otherwise there is the possibility of involuntary servitude, which is prohibited in the Thirteenth Amendment to the U.S. Constitution. The doctrine of mutuality of obligations then required a symmetrical right of the employer to terminate the employee at any time. At- Will Employment: Definition and Application In its narrowest sense, the doctrine of at-will employment only speaks to when an employment contract can be terminated: the contract can be terminated at-will of either party, i. e., at any time.

A separate issue is why (i. e., for what reasons) the employment contract can be properly terminated. From the beginning, the concept of at-will employment meant that the employment contract could be terminated for any reason by either party (Mauk, 1985). Most employees of state governments in the USA are not at-will employees. And most members of labor unions in the USA are covered by a written contract, called a 'collective bargaining agreement" that contains a clause specifying that their employment can be terminated only for just cause. This clause makes union members not at-will employees. Recognizing that this rule of law is too harsh, courts in the 1960's began to develop an exception to the absolute right of an employer to terminate an at-will employee, in cases where the employer violated a clearly expressed public policy.

The process of developing the public-policy exception to at-will employment accelerated during the 1980's and 1990's, not only with judicial recognition of public policy, but also legislatures passing statutes providing whistle blowers with protection from retaliatory discharge (Mauk, 1985). At St. Thomas the Apostle school, we have a part - time Day Care provider, who works for our after school program and might be fired at the end of this school year. She has displayed unethical behavior towards co-workers, unprofessional attitude toward parents and students, and illegal actions by displaying negligence to safeguard students under her care. Therefore, a panel of several administrators has met to discuss the different legal issues that might arise before termination is announced to her this June. Some employees have come forward with written evidence about unprofessional behavior done by this person.

Because of legal statues that protect whistle blowers, they are willing to disclose vital information that will assist with this case. However, after blowing the whistle on one employer, the whistle blower is a pariah, who other employers will summarily refuse to employ, since employers value loyalty to their organization more than either ethics or Truth. Thus, the act of whistle blowing makes the conscientious employee an expendable commodity who is thereafter unemployable. The fact that this Day Care provider is a part- time, hourly paid employee, diminishes the possibilities of this person suing for wrongful termination.

But the at-will employment stipulations might apply in this case because we have specific reasoning for firing this individual and there is no contract behind her employment situation. However, there is an implied contract and handbook or policy which limits the ability of my employer to terminate her because of special conditions (Legal Database, 2005). All U.S. States recognize retaliatory discharge as an exception to the at-will rule. Under the retaliatory discharge exception, an employer may not fire an employee if it would violate the State's public policy or a State or Federal statute.

Most states also recognize an implied contract as an exception to at-will employment. Implied employment contracts are most often found when an employer's personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a procedural process for firing. If the employer fires the employee in violation of an implied employment contract, the employer may be found liable for breach of contract (Hill, 1987). Even though we have not pressured this employee to act unethically in order to maintain her position, my employer might be liable if she presents our Staff Policy and Handbook as a document that implied a contract. Also, there was not a clear procedural explanation when this person was hired or worked for the program. If she is able to depict sections in the handbook that might prove that she was not well informed of what was considered negligence and unethical behavior, she might have a suit in her hands.

Conclusion If society does not protect the continued employment of professionals who make an ethical choice in the face of opposition by their employer, then that society does not deserve professionals with high ethical standards. To help us implement our policies successfully, we must provide more specifications about positive attitude, on-duty vs. off-duty Conduct and suspicious, unethical, or illegal conduct. And there should have been a consistent enforcement of discipline to avoid workplace violence and prohibited conduct. I believe that the lack of communicating rules and of the overall liability for workplace violence might have created the hostile environment from this person I have described in this paper.

To avoid misunderstanding, I personally believe that ethics codes are essential to both civilized society and professional behavior. But I also believe that society should not require employed professionals to become martyrs, because those professionals choose to follow a code of ethics instead of condoning peer-pressure., like it is in the case of the employees who are willing to cooperate with information about the day care provider who has violated very important safety standards within our school. Reference sHill, A. (1987). Wrongful Discharge and the Derogation of the At-Will Employment Doctrine (Labor Relations and Public Policy Series, No 31).

University of Pennsylvania Press. Legal Database, (2005). At Will Employment. Legal Database. Com. Retrieved May 31, 2005 from the World Wide Web: web W. (1985), Wrongful Discharge: The Erosion of 100 Years of Employer Privilege, 21 Idaho L. Rev. 201,202..