Chapter 18 - Terminating Individual Employees

just cause/ due process standard

Legal provisions under which employers bear the burden of proving that terminations were carried out properly and were based on good reasons. The default rule is that if an employer cannot adequately defend a challenged termination, that termination is wrongful and the employee is entitled to reinstatement, back wages, or other remedies.

promissory estoppel

a contract related claim occasionally raised in discharge cases. Key elements are reasonable and detrimental reliance on a clear promise

intentional interference with a contractual relationship

a contract-related claim for which tort damages are available. occurs when intentional, improper interference causes a 3rd party to breach or not enter into a contractual relationship with the plaintiff

first amendment

a legal protection against wrongful discharge. under first amendment substantive conditional rights-freedom of religion, speech, association-can be invoked when a termination or other discipline is used to suppress those rights

employment at will with exceptions

a legal regime under which employees bear the burden of showing that their termination was for an "illegal cause" prohibited by law. But if they fail to do so, the default rule is employment at will; the termination is legal regardless of how dubious the reasons or circumstances

constructive discharge

a resignation that occurs when an employee is presented with the stark option of resigning or being immediately terminated

Sarbanes-Oxley Act

an act intended to encourage the reporting of financial wrongdoing by protecting employees of publicly traded companies who disclose information, assist in investigations, file charges, testify, or otherwise assist in proceedings related to fraud against shareholders of publicly traded companies

whistleblowing

an instance in which public policy wrongful discharge claims are recognized. Whistle-blowers report activities engaged in by employers or their agents that are illegal or otherwise injurious to the public

tenure

guarantee of job which is typically conferred following a relatively lengthy probationary period and a formal assessment of past and likely future performance

speak as a citizen on a matter of public concern

speech relating to political, social, or other community concerns, or a subject of legitimate news interest based on content, form, and context of speech

property interest

the existence of employment policies, and express or implied contracts as defined by state laws

employment at will

there is no such thing as a wrongful termination. an employee without a contract of employment for a specified term can be terminated at any time for a good reason, bad reason, or no reason

covenant of good faith and fair dealing

A type of wrongful discharge claim. It pertains to terminations that are undertaken in bad faith and that have the effect of denying employees the benefits of their contractual employment relationship

False claims act

An Act which applies to individuals who come forth with information about a knowingly false or fraudulent claim made against the federal government. The law allows the Department of Justice to join in suits to recover the amounts lost through fraud or individuals to sue on behalf of the government.

Whistleblower Protection Act (WPA)

An act which prohibits taking or failing to take a personnel action because an employee or applicant has disclosed information that is reasonably believed to show (1) a violation of a law, rule, or regulation or (2) gross mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety.

exercising legal rights

An instance in which public policy wrongful discharge claims are recognized. If employees are terminated for exercising legal rights they can approach court.

performing a public duty

An instance in which public policy wrongful discharge claims are recognized. The duty in these cases is something that is not strictly required by law, but it is clearly an action undertaken in the public interest.

refusal to commit an illegal act

An instance in which the public policy exception to employment at will is recognized. Under this employees can approach court if they are terminated for refusing to commit an illegal act.

public policy exception to employment at will

Common law claims under which employers are liable in tort for wrongful discharge when they terminate employees for taking actions that public policy requires or commends.

Dodd-Frank Wall Street Reform and Consumer Protection Act

enacted in 2010 in response to the banking crisis that led to the failure of numerous banks and investment firms, consolidation of others, and a controversial "bail-out" of large financial institutions. it tries to strengthen oversight of the financial industry and incorporates several different whistle blower provisions

progressive discipline

entails making a genuine effort to correct undesirable behavior, not just going through the motions and creating a paper trail before terminating an employee

civil service laws

laws which are intended to ensure that merit, and not political patronage, guides employment decisions. Besides specifying job classification, testing, hiring, and promotion procedures for public employment, civil service laws usually incorporate processes for review of disciplinary decisions

just cause

legal provisions under which employees bear the burden of proving that terminations were carried out properly and were based on good reasons. The default rule is that if an employer cannot adequately defend a challenged termination that termination is wrongful and the employee is entitled to reinstatement, back wages, or other remedies.

Montana Wrongful Discharge from Employment Act (WDEA)

legal provisions under which employers bear the burden of proving that terminations were carried out properly and were based on good reasons. the default rule is that if an employer cannot adequately defend a challenged termination, that termination is wrongful and the employee is entitled to reinstatement, back wages, or other remedies

liberty interest

maintaining employee's good name, the charges that are the basis for termination must be stigmatizing, false, and made public without a meaningful opportunity for the employee to clear his name

similarly situated

refers to how strictly comparable the situations of employees must be

implied contract

written or oral statements by employers-and their entire course of conduct in dealing with employees-give rise to enforceable contractual rights. this includes the employer's informal policies, past practice, industry customers, and treatment of the individual employee

disclaimer

written statements incorporated into employee handbooks, employment applications, or other important documents that "disclaim" or deny that any statements in those documents create contractual rights binding on the employer