Introduction
At will employment refers to the situation where without a written employment the employee or the employer can terminate the employment at any time for a good, bad cause or no cause at all(Herman, 2006). There are three exceptions to the aspect of at will employment. This is advantageous to the employee as it offers protection from being misused by the employers (Irikefe, 2010)
Public Policy Exception: The first exception is the public policy exception. In this situation an employer cannot terminate the employer’s employment for refusing to break the law. Another situation may be where an employee is injured on the job, If the employee files a complaint, the employer cannot fire the employee(Tomlinson & Bockanic, 2009).. This exception is observed in 43 of the 50 states. This exception began in the 1980’s with the case of Petermann v. International Brotherhood of Teamsters. Peterson was an agent employed by the teamsters. During his employment with the company he was subpoenaed by the California legislature, in an investigation looking at the corruption inside the Teamsters Union. The teamsters wanted Peterson to lie in his testimony. He refused and was subsequently fired. The appeal court found that the employer cannot fire a person when such an action would be dangerous for the public good. In this case perjury in court was against the public good (Muhl, 2001).
Implied Contract Exception: The second exception in the “at will” employment is the implied contract exception. In this exception if the employer made statements concerning job security and other employment conditions to the employee then these representations will be deemed to form part of the contract.
In the 1980’s the case of Toussaint v. Blue Cross & Blue Shield of Michigan, demonstrated clearly this exception. The plaintiff, Charles Toussant had been employed by the Blue Cross where he worked for five years before he was fired. At the time of his employment, the employer had communicated that his job was secured as long as he did his job. The personnel policies of the company communicated that the policy to terminate employees only on the basis of a just cause. The plaintiff won the case since the court noted that even though the employment contract had no definite term of employment; the employee could not be arbitrary fired when he had done his job well. The representations by the company that someone would be fired on just causes were deemed to form part of a contract and enforceable in a court of law. This exception states that where the employer’s policies or guidelines are presented to be official then an employer has an obligation to the employee (Rousseau, & Anton, 1988). This is regardless of whether both parties had indicated that the policies were binding or not. In this exception, the employers usually put a disclaimer to the policies to inform the employee that the policies do not form contractual obligations.
Covenant of Good Faith Exception: The exception to at will employment is applicable in several states. The employer is required to treat the employee with fairness throughout their employment relationship. The employer cannot fire the employee out of malice or in bad faith. A good case that demonstrates this exception is the case of 1980 of Lawrence M. Cleary v. American Airlines, Inc.
An employee who had worked for the company for eighteen years was dismissed with no cause. When the plaintiff took the company to court, it was decided that due to the company’s policy of resolving personnel disputes the employer was not right in just firing the employee considering the number of years the employee had been in the company. The court stated that the company’s action to let go of the employee went against the covenant of good faith and fair dealing. The court further stated that the company had an obligation or duty to commit itself to do nothing that would deprive the employee of his benefits.
Director of Human Resources Decision
As a director of human resources director, I would be concerned with the legal liability that would be attached to the company due to terminating Dan. Though it was a situation of at will employment, the company had no right to terminate Dan due to the public policy exception. An employee of the company by law is expected to report on illegal activities in his company. The government has a budget allocation in support of Medicare or Medicaid expenses. Illegal billings are a misappropriation of public funds therefore not reporting on it goes against public policy and the company will be liable. It would be in the company’s best interest to reinstate the employee and investigate the irregular billings so that the company is not found liable in a court of law.
In conclusion, the company should be careful to observe the exceptions in the at will employment so as to avoid legal liability. I would recommend a training to be held for the human resources personnel in the company so that they can be aware of the legal risks in such employment contracts.
Family and Medical Leave Act
Under the Family and Medical Leave Act, there are certain obligations on employees and employers. The employees under this act are entitled to 12 weeks of unpaid leave with their job security is guaranteed. The employees are eligible for the leave when they are incapacitated due to pregnancy, they need to take care of their child after birth or while conducting the placement for adoption processes (U.S Department of Labor, 2009). Other allowable circumstances are when one needs to take care of a relative who has had a serious health complication or when the employee himself or herself is unable to work due to illness or a serious injury.
The Act also contains special considerations for employees with family members in active military service. An employee is entitled to take up to 26 weeks of leave to care for a family member who has been injured in the line of duty and is unable to perform his or her duties while undergoing medical care. The benefits that the employee is usually entitled to should not be affected during this period. The employee should still enjoy health cover under the employer’s group health cover. Once the individual comes back from leave, the employer is expected to restore the employee to their original position in the organization in terms of pay and other employment terms.
An employee is eligible for the leave when they worked for 12 months or the employer has over 50 workers within a distance of about 75 miles.
It is not mandatory to take all the leave days at the same time. The employee can schedule his or her leave days to coincide with the medical appointments in consideration of the employer.
The Act allows for flexibility. The employees may request the employers to substitute their paid leave with unpaid leave. The employee is expected to give a month’s notice. The employee should consider the employer and strive to give sufficient notice.
The employer may also require the individual to give sufficient information on their particular illness and condition or that of their relative.
By law, the employer has an obligation to notify the employees whether they are eligible for the FMLA or not. Where the employees are not legible, the employer has to clearly inform the employees the reasons for their illegibility. Employers will be found liable in a court of law where they restrain the employee from taking their leave. They are also not allowed to discriminate against employees who have taken the leave by changing their employment pay or benefits. Where the employees experience discrimination, they can file a complaint in court.
There are other laws related to the Family and Medical Leave Act. In California, there is the California Family Rights Act (CFRA) which enables new mothers to take up at most 12 weeks of unpaid leave. The conditions for legibility are similar to the Family and Medical Leave. The state also has the California paid leave insurance program. This program enables employees who want to bond with their child or take care of an ill relative take leave. The leave however has to be taken concurrently with the FMLA and CRFA.
References
Herman, M. (2006) Employment at Will: Sacred Cow or Dinosaur? Web.
Irikefe, U. (2010) Impact of Employment-at-will Clause on Employees and Employers Journal of Business Studies Quarterly 2(1), 29-35
Muhl, C. (2001) The employment-at-will doctrine: three major exceptions. Monthly Labor Review, January Issue, 3-11
Rousseau, D. & Anton, R.(1988). Fairness and Implied Contract Obligations in Job Terminations: A Policy-Capturing Study. Human Performance, 1(4), 273-289
Tomlinson, E. & Bockanic, W.(2009). Avoiding Liability for Wrongful Termination: “Ready, Aim,…Fire!”. Employee Responsibilities & Rights Journal, 21(2), 77-87.
U.S Department of Labor (2009). Employee Rights and Responsibilities under the Family and Medical Leave Act. Web.