Ch. 18 - Termination

Intentional interference with a contractual relationship (example)

Blacklisting a former employee so that he or she cannot gain future employment

Disclaimers (defined)

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

Constitutional amendments requiring due process for termination of public employees

Fifth and Fourteenth

Conditions under which private employers may consider the off-duty behavior of employees (2)

If said conduct is illegal, or in violation of policy

Required elements of pre-termination hearing for public employees (3)

Provides public employees with: 1) Notice of the charges against them 2) An explanation of the evidence 3) The opportunity to present their side of the story

Negligent retention

1) A standard of conduct or duty to others exists with respect to an employer taking reasonable steps to avoid retaining unfit employees. (2) The employer fails to exercise the proper degree of care and retains an unfit employee. (3) A coworker or other third party is harmed or injured by an unfit employee. (4) The employer's failure to exercise the proper degree of care in retention is the proximate cause of the harm or injury that occurred.

Advice for handling terminations (6)

1) Alternatives to termination should be considered 2) Employees should be placed on administrative leave if circumstances warrant 3) The reasons for termination should be thoroughly documented 4) Communicate information regarding terminations only with those with a need to know 5) Unless there is a security reason, employees should be allowed time to clear out their desk and other areas instead of security rushing them out the door 6) Unless termination is for gross misconduct, terminated employees should be notified of their right to continued health insurance under COBRA

Elements of a public policy exception claim (3)

1) Clarity element 2) Jeopardy element 3) Causation element

Three types of contractual claims arising out of terminations

1) Covenant of good faith and fair dealing 2) Promissory estoppel 3) Intentional interference with a contractual relationship

Advice regarding dissemination of disclaimers (2)

1) Disclaimers should be communicated to employees 2) Employees should be asked to acknowledge receipt in writing.

Examples of constructive discharge (2)

1) Employers creating intolerable conditions designed to force employees to quit 2) Employers offering resignation as the only alternative to termination

Legal claims that can arise out of constructive discharge (2)

1) Harassment 2) Infliction of emotional distress

Four examples of terminable offenses from class

1) Insubordination - Cause to fire any employee - Easiest to prove 2) Immorality (e.g. sexual indiscretions) 3) Neglect of duty (e.g. don't show up for work) 4) Incompetency - Most difficult to prove

Language typically included in disclaimers (4)

1) Language disclaiming the existence of a contract is typically combined with notification to employees in clear terms that their employment is at will 2) Language denying the contractual effect of any conflicting statements made elsewhere 3) Language reserving the right of the employer to modify policies 4) Language placing that authority solely with designated individuals

Elements of a just cause hearing (7)

1) Notice 2) Reasonableness 3) Investigation 4) Fairness of investigation 5) Proof 6) Equal treatment 7) Penalty

Covenant of good faith and fair dealing (3)

1) Pertains to terminations that are undertaken in bad faith and that have the effect of denying employees the benefits of their contractual employment relationship 2) Generally applies only where there is an express or implied contract and the employer has used a termination to deprive an employee of an already earned benefit 3) The covenant of good faith and fair dealing basically requires employers to treat like employees alike and to act in a manner that a reasonable person would regard as fair

Rights guaranteed to public employees by the Fifth and Fourteenth Amendments (2)

1) Property interest rights (e.g., continued employment) 2) Liberty interest rights (e.g., otherwise good name)

Examples of protected activity, for which employees may not be terminated (6)

1) Union organizing 2) Free speech in public sector 3) Retaliation for having filed a claim or suit 4) Jury duty 5) Military service 6) Participating in FMLA leave

Conditions under which cause must be shown for termination

1) Unionized employees, subject to a CBA 2) Civil servant (civil service laws) 3) Tenure

Guidelines for severance pay (2)

1) When not contractual, within union agreement, or provided for within policy, there is no right to severance pay 2) Employers might consider offering a related package for releases of legal claims related to termination (must be voluntary and include consideration)

Procedures for termination of union employees (4)

1) When the CBA specifies the bases for termination as well as procedures to be followed, the employer then must follow the specified procedures and meet the relevant standards if they are to legally terminate 2) Enforcement must be consistent across both time and different individuals engaging in the same conduct 3) Unionized employers must clearly communicate changes in policies before attempting to enforce new, more stringent standards. 4) Arbitrators generally expect to see progressive discipline

Criteria for an implied contract (9)

1. A specific promise was made 2. The promise was made frequently and consistently 3. The source of the promise was someone with sufficient authority to offer it 4. The promise was communicated to the employee 5. The promise was not highly conditional (i.e., dependent on the employer's own judgment) 6. The employer's entire "course of conduct" (e.g., policies, practices, statements, industry practices, employee tenure) was consistent with the promise 7. There was an exhaustive listing of dischargeable offenses in a handbook (and the offense for which termination occurred was not included in that list) 8. A change to a less protective policy was not communicated to employees 9. There was no effective disclaimer

Clarity element of a public policy exception claim (defined)

A clear public policy existed relevant to employees' conduct

Required elements of post-termination hearing for public employees, if requested

A more elaborate hearing with opportunities to confront witnesses and present evidence

Jeopardy element of a public policy exception claim (defined)

Discouraging the conduct in which employees engaged would undermine this public policy

Causation element of a public policy exception claim (defined)

Engaging in conduct supportive of public policy resulted in termination

Public policy exception of employment at will (defined)

Employers are liable in tort for wrongful discharge when they terminate employees for taking actions that public policy requires or commands

Condition under which public employees may be terminated or disciplined for exercising constitutional rights

Only when the exercise of these rights clearly interferes with an employee's ability to do his or her job or with accomplishment of the public agency's mission.

Termination at will with exceptions (defined)

Requires at least some cause and at least some process

Four recognized varieties of the public policy exception to employment at will

Termination for: 1. Refusing to commit an illegal act 2. Exercising a legal right 3. Performing a public duty 4. Reporting illegal activity (whistleblowing)

Requirement if an employee with an express contract is terminated prior to the expiration of the contract

The employer will be liable for damages for breach of contract unless the employer can show that there was cause to terminate.

Key element of promissory estoppel

The reasonable and detrimental reliance on a clear promise

Implied contract exception to employment at will (defined)

The right of employers to terminate at will can be limited by promises of job security