1.6 Wrongful Discharge and Related Tort Claims
In addition to the exceptions to the at-will doctrine discussed in the previous section, employees may claim wrongful termination through tort claims or constructive discharge.
Resignation of an employee because an employer allows working conditions that are no longer tolerable for any reasonable employee. exists when an employer allows intolerable conditions of unfairness or mistreatment to exist at work to such a degree that no reasonable employee would feel he or she had any other option but to quit. These conditions could include, among other things, sexual or other harassment, failure to accommodate a disability, or excessive pressure to retire.
Another claim by an employee for wrongful discharge could be the tort of An employee’s claim that a third party pressures the employer to terminate an employee without cause.. This claim, which is limited in its recognition, exists when a third party, perhaps a co-worker or client, pressures the employer to terminate an employee without cause. The idea is that, while the employment relationship is not expressly contractual, the meddling of the third party in an otherwise healthy employer/employee relationship has the same effect as an interference with contract.
About half the states recognize that if an employer terminates an employee in an intentionally reckless or outrageous manner such that it causes serious emotional and psychological damage, the fired employee may have a claim for wrongful termination on the theory of An employee’s claim that an employer terminated an employee in an intentionally reckless or outrageous manner that caused serious emotional and psychological damage. .
Additionally, employers must be careful that in the termination process an employee is not defamed. In the
As mentioned above, the state of Montana has opted out of the at-will doctrine by passing the Montana Wrongful Discharge From Employment Act of 1987 (WDEA). The WDEA prohibits termination for anything other than good cause once an employee has successfully passed a probationary period and allows for an employee to seek arbitration for a termination dispute. The positive for employers is that the WDEA limits employee damages for wrongful termination to four years of compensation.
Discharge Practices
There is no specific employment law governing when and how an employee may be terminated. In a strictly at-will doctrine state, an employee may be terminated at any time without cause. However, as noted earlier, that termination may not violate public policy or good faith and fair dealing.
The concept of “progressive discipline” leading to termination is a human resource concept, not a legal one. However, if an employer, either by collective bargaining agreement with a union, in express promises in an employee handbook, or by conduct, guarantees that certain remedial action – progressive discipline – will be offered, that agreement must be honored and the remedial steps followed, or the fired employee may have a claim of wrongful discharge. Moreover, if the termination violates a collective bargaining agreement it will be considered by the NLRB to be an unfair labor practice.
If an employee has made a claim of unlawful discrimination, the employer must be very careful to avoid a claim that termination was motivated by retaliation. However, if an employee deserves termination, the employee’s failings have been adequately documented, and all progressive discipline steps been unsuccessful, then the employer is justified in terminating the employee. Many employers wait too long and are afraid to terminate non-performing employees because of fear of retaliation claims. The case of whistleblowing employees is exactly the same. Treating a whistle-blower or a complaining employee differently from others gives rise to additional claims of discrimination.
The employer must remember when terminating employees to treat all employees exactly the same. Disparate treatment of employees in the termination process is just as unlawful as in the on-boarding process.
Topic 1 Terms
A procedure for resolving collective bargaining impasses by which an arbitrator (third party) choose a solution to the dispute.
A presumption that each party in a contract will deal with each other in good faith and fairness.
Principles developed over centuries as a result of legal decisions made by judges in individual cases.
One who performs services under the direction and control of another.
One who employs the services of others in exchange for wages.
Right of ownership shared by two or more owners such that on the death of an owner his or her right passes on to surviving owner(s), the last survivor becoming the full owner.
Performance management tool designed to modify employee behavior by using a set of increasingly severe discipline steps, with consequences, that hold the employee responsible.
Article VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
Established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens.
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