The paper 'Discrimination Cases against Employer" is an outstanding example of law coursework. Last decade has seen an increased number of discrimination cases against employers. Neilson states in his research that in all economically developed democracies, the trend this century has been to temper the traditional liberal theory of employment-at-will. The employment-at-will doctrine holds that absent a written contract or collective bargaining agreement, an employer may terminate an employee at any time for any legal reason or no reason (Nielsen, 1999). Even though at-will employment specifies that an employer can terminate an employee without a cause, its scope is limited to generic causes.
“ Title VII of the Civil Rights Act (1964), protects employees from arbitrary dismissal on the basis of race, color, sex, religion, national origin, age, lineage, pregnancy, military service, and handicap” (Gomes & Morgan, 1992). If the reason for termination differs from the aforesaid, all probable claims by an employee should be taken into consideration and necessary arrangements should be made before terminating the employee. In Brain’ s case, the reason for termination is not apparent as misconduct was not in the workplace and the event was not organized by the company. Dataforce has three options available, if it opts to take action: first it could warn Brain and issue a show-cause notice, second, it could send Brain on unpaid leave, and third, it can go for termination.
The company could ask Brain to resign on his own as a voluntary termination, or it could terminate Brain’ s employment on its own. However, the company should opt for the termination in extreme cases where the cause could not be improved. If termination is absolutely necessary, it is advisable to check legal and managerial implications before deciding to fire an employee.
Legally, a company can fire any employee on the basis of poor performance, misconduct, absence from work, violence, consumption of drugs or alcohol, illegal activity and wrong information. Contrarily, the law forbids termination on discrimination based on age, sex, nationality and religion. In special cases, if the company has professionalism policy in place where it specifies expected off – work conduct, it can fire employees on the basis of their conduct away from work.
Off-duty conduct law, applicable in some states, also forbids misconducts but, at present, its scope is limited to social networks. There are several critical factors that Sally should consider while considering termination. Most importantly, they include Brain’ s response to the termination. Brian could ask for evidence and relevance of his behavior w. r.t work. Brian could also make misleading statements to other employees regarding the manner in which termination was communicated. “ Wrongful termination claims were most strongly correlated the way workers felt they had been treated at the time of termination and with their expected winnings from such a claim” (Lind, Greenberg, Scott & Welchans, 2000).
And in extreme cases, he could also opt for a legal response. Secondly, the company should consider the impact on the company’ s performance in Brain’ s absence. If Dataforce opts for firing Brian for misconduct first it should consider if Brain’ s termination is appropriate regarding the seriousness of his misconduct. “ Seniority and past commitments of long term employment contribute significantly to the judgment of termination fairness and obligation” (Rousseau & Anton, 1991). Could there be an alternative to his termination?
How has the company addressed similar problems in the past? The company’ s documentation should be intact and ensure that it had stated termination, in the advent of current misconduct, as one of its policies. Also, it should check if there is sufficient evidence available for Brain’ s misconduct. And, what should be the company’ s approach if Brian successfully clarifies them? Employment policies differ with states; they should be referred properly before taking termination decision.
Bies, RJ & Tyler, TR 1993,’The “litigation mentality “ in organizations: a test of alternative psychological explanations’, University of California,Vol 4, No.3, pp 352-368.
Dilts, AD & Moore, JS 2009,’ Do arbitrators use just cause standards in deciding discharge and discipline cases? A test’, Journal of Labor research, Vol 30, No. 3, pp 245-261
Estund,CL, 1996,’Wrongful discharge protection in at-will world’, HeinOnline’s Law Journal library, vol. 74,no. 1, pp 1655.
Gomes, GM & Morgon, JF 1992,’Meeting the wrongful discharge challenge: legislative options for small business’. Journal of small business management, Vol.30,No.4,pp 96-105.
Hopkins, WE & Hopkins SA 1999,’The ethics of downsizing:Perceptions of rights and responsibilities’, Journal of Business etics, Vol.18, No.2,pp 145-155
Lind, EA, Greenberg, J, Scott, SK & Welchans TD 2000,’the winding road from employee to Complainant: Situational and psychological determinants of wrongful termination claims’, Cornell University, Vol.45.no.1, pp 557-590.
Nielsen, LB, 1999, ’Paying workers or paying lawyers: Employee termination process in the United States and Canada’. HeinOnline’s Law Journal library, Vol. 21, No.3,pp 247-282
Rousseau, DM & Anton RJ 1991,’Fairness and implied contract obligations in Job terminations: The role of contributions, promises and performance’, Journal of organizational behavior, Vol.12, No.4, pp 287-299.
Schemedemann, DA & Parks JM 1994,’Contract formation and employee handbooks: legal, psychological and empirical analysis’, Human resource management review, Vol. 19, No.2, pp 154-166
Wholey, JS & Hatry HP 1992,’ the case for performance monitoring’, American society for public administration, Vol.52, No.6, pp-604
Business link,’Non-disclosure agreements’, Viewed on 18th March, 2010 http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1074417521
Jesseph, SA 1989,’Employee termination 2: some dos and don’ts’, Viewed on 18th March 2010, http://www.accessmylibrary.com/article-1G1-7329979/employee-termination-2-some.html