Assignment 1: Summary of Employment-At-Will Doctrine
The famous philosopher James Allen inspired the society by his writings satisfactory performance to be rewarded with job security, in early 20th century. The US courts regarded relationship of employer and employee as being on equal footing for bargaining power. However, jobs were terminated for any reason by either parties and that eventually resulted in employees forming a union in the 60s. The union requirement for “just cause” and procedures for arbitrating wrongful discharge seeded first legislative protections, which are described below.
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Public policy, created by the court in the late 20th century for establishing a balance between employer’s interest in keeping business profitably, the employee’s interest in earning a livelihood, and society’s interest in maintaining public policies. The definition of public policy is varies from State to State, however most States let judges to declare it beyond their constitution. Implied contract, implication by hiring official or in handbooks that employment will continue as long as employee’s performance is adequate or it will end only for “just cause”, and the employer is obliged to follow specific procedure before disciplining or discharging employee.
This is practiced in 38 of 50 States, for some courts regard that benefits conferred for the parties cannot be the rights of traditional contract, and employer has to make it clear that their policies do not create contractual obligations. Covenant of good faith and fair dealing protects extended employment based on pure trust from abuse by employer, thereby prohibits termination motivated by malice. 11 States recognized this exception. Florida appellate court justifies the exception as “The traditional at-will employment totally subordinates an interest of employee to employer’s freedom”.
Following these exceptions, there are other common-law limitations have been developed, including suits seeking damage for wrongful discharge, which has increased in recent years (Monthly Labor Review, January 2001) and employer, nowadays, has to be careful and tactical about firing someone based on the traditional at-will employment. The modern changes require companies to be not only highly ethical, but also be sociably responsible for supporting the developments, while using the human and environmental resources.
2. Imagine you are a recently-hired COO in a midsize company preparing for IPO. You discovered the following personnel problems that require immediate addressing. As a COO, it is my responsibility to see that employees are favorably contributing to the growth of the company and as a recently hired, I would rather seek ways to retain the personnel instead of immediately taking disciplinary action or terminating the employees.
Therefore, within the discretion of my position, I will take some measures and would start them from a meeting with the managers of John, Jim, Ellen, Bill, Joe, Anna and accounting secretaries to discuss about what we are preparing for now, what are objectives for each department should be, as well as actions to be taken, so the company achieves maximum sales of security at the stock market and policies to improve or to adopt for reducing the risks in gaining trust of both current and potential shareholders and customers.
As it is important that managers understand what has been discovered regarding their employee, I would raise the eight issues, next, and explain why the matters are of concern, upon which I will challenge the managers to provide their suggestions on developing policies such as Whistleblower, Personal Use of Business Equipment, Customer Privacy and Confidentiality Agreement. For collecting fact and experience based improvement ideas to address the personnel issues, I would advise the managers to take each of the employees aside to talk the matter privately first and then develop their recommendations for me, so I can draft a new policy and standard for the company.
For coming to consensus, managers should listen to the employees’ explanation, analyze the situation and then suggest each of them what the company expects from each team. In order to make sure the eight issues are addressed, the following will be pointed out to the Managers: All employees represent the company for customers, therefore the employees to be reiterated that any criticism or discussion regarding our customers to be first consulted with their line manager internally. All employees must treat customers as King. John made a serious mistake by publicly criticizing the most important customer on his Facebook.
As a result big loss or tension between the company and consumers may be incurred. If consumer decides to sue against the company, it will be even worse. If John confesses his mistake, the manager should agree to help him to take corrective actions immediately, such as posting apology for his frivolous messages about the customer. In this situation, team work to improve communication with the customer is crucial to re-gain the trust of the customer. Discuss within the team an idea of introducing internal speak-out channel to encourage transparency in communication within the company, which will prevent employees sending messages secretly to colleagues or stakeholders.
I would advise the manager of Jim give him a chance to correct his mistake, when discuss the matter privately with him and listen to his reasons of protesting the change in commission schedules and bonuses. Schedule team meetings on weekly basis to keep the staff abreast with the most up-to-date changes and inform them of projected activities, strategies designed to meet the goal and gather their inputs for having their motivation. I will suggest the manager of Ellen talk to her privately and listen to her reasons about posting corporate confidential information for public reading via her private blog.
If she is willing to take corrective action, I encourage the manager to be supportive to her, for instance, putting an apology post. Make a statement, clearly outlining both appropriate and prohibited uses of company provided tools and facility, including business hours and say that company owned phones will be monitored for assessment of customer service quality. It also should be noted that an important exception will certainly be made for personal calls. Under federal case law, when an employer realizes the call is personal, the monitoring must be immediately stopped (Watkins v. L.M Berry&Co., 704 F.2d 577, 583 (11th Cir.1983)).
However Bill’s using company-issued BlackBerry to run his own business on the side may create a problem to us, if he deals with illegal product sale and in that case the company can be found liable for a fraud action. Manager of the accounting department should explain in his statement that the keylogger software installation is for monitoring only for legitimate reasons. If the company does not prevent someone uses the secretaries’ computer without authorization, or too much emails and Internet abuse, the company will lose money and time.
The secretaries should be also asked about their reasons for protesting the monitoring and their explanation will be evaluated against the standard we want to achieve. A meeting with Joe should be set soon after the one with the managers to note him three things that (1) during the beginning of his employment with the company, he had been implied about the company’s policy that its computers were for company business use only, (2) privacy cannot be expected, because the company would monitor its computers to implement its policy, and (3) employees using company computers have no right of privacy. If he does not agree with these terms and still wants to sue – I will leave him alone, because the court will deal with him. (Smith v.Pillsbury and Falmouth Firefighters Union v.Town of Falmouth).
I will personally meet with the department supervisor and stress that his secretary is loyal to the company’s long-term interest, second, the report had to be false, and that is why she refused subordination. As being responsible for successful operation of the company, I am most interested in running the business in consistent with public policy and discharging the employee for exercising her legal right or duty or by refusing to violate the law will be wrongful discharge. Moreover, that will severely damage the reputation of the company before IPO takes place, if she sues us.
I will support the highly loyal employees and would ask CFO to help with resolution of the false expense report issue. Everyone in managerial position knows that jury duty is a legal and as much duty of a jury to prevent colleague from being convicted. It will be the boss’s fault, violating the public policy for refusing to let his subordinate to perform her legal duty. Second, the boss is acting unethically by falsely accusing her, when Anna did ask a permission to leave. I am sure Anna is interested in knowing that she will not be discharged for exercising her legal right.
After a week, I will meet with the managers and have their reports on their measures taken. As we all know, we will collectively design formal policy of whistleblowing, so employees know appropriate steps to take in communicating their ethical concerns internally. We will aim to reflect the following components:
1. Employees aware of possible wrongdoing in the company have a responsibility to disclose that information to a speak-out number.
2. Guarantee of no adverse employment of those who disclosed perceived wrongdoing.
3. The establishment of a fair and impartial investigative process. If there will be employees, who did not do corrective actions, continuing to cause the company loss, I would have no legal obligation to continue their employment, so I will terminate them.