1. Address your understanding of the term constructive discharge? (what is it). Then identify factors court might focus on to determine if a claim of constructive discharge exists. How might the organization avoid claims of constructive discharge?
Constructive discharge is also known as constructive dismissal or constructive termination; it happens when an employee can no longer stay on the job because of a hostile work environment. In the situation of constructive dismissal, the employer does not terminate the worker but he or she illegally makes a place of work very unconducive that the employee has no option but to quit the job (FindLaw, 2020). In the event, the employer acts against the established agreement by specifically targeting the worker and, therefore, the employee voluntarily gets out as a result of the lack of reasonable alternative and pressure at the workplace.
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In determining if the employer practices enough equate to unfavorable and unconducive working conditions to allow constructive dismissal, courts look on situations such as identifying if the employee was pushed into committing a wrongful activity (FindLaw, 2020). Secondly. It identifies if the employer was incomplete awareness or deeply looked into the employee’s grievances. It also looks at the type of the employer’s illegal conduct. Finally, the courts look at the duration at which the worker quitted the job and the time at which the claimed mistreatment occurred.
The organization might avoid claims of constructive discharge by, providing a favorable work environment that is free from bullying, harassment, and hostility. The managers should ensure that when making changes, they involve employees, and the changes should be done in honest and legitimate business reasons. Importantly, when offering employee, a different position, they should make the compensation and remunerations and relevant as per the position and match responsibilities undertaken by the worker so that the affected employee does not feel wasted (Clear HR Consulting, 2020). The organization should make its terms of work to involve agreements that allow it with the opportunity to unilaterally make changes that are crucial as this will help in facilitating changes effectively. The firm should consider the provision of notice to employees if it wants to enforce unilateral and substantial changes as this creates enough and early preparation for employees. Treating employees with honesty and good faith also helps in the avoidance of claims of constructive discharge, organizations should also practice participative management in order to make employees contribute their ideas to organizations during the decision making
2. Discuss the difference between “pure employment-at-will” and “employment-at-will with exceptions.” Do you believe employment-at-will is fair? If not, what is an alternative?
Pure employment-at-will is a contractual relationship that encourages a free will of flexibility in a work set up. In this relationship, the employer can change the terms of employment such as wages and benefit plans without notice or consequences. An employee has the right to initiate any type of without considering employee’s opinions. A worker can be fired at any moment without the issuance of notice (Henson, 2015). In this type of contract, the courts do not support an employee to sue the employer in pursuit of compensation due to illegal dismissal. The employee is also free to quit the job any time with or without a reason. Whereas, Employment-at-will with the exception is an implied contract for continued employment. It is an agreement that provides legal protection for employees recognized and protected under the umbrella of collective bargaining contracts or any form of coverage that advocates for employee’s rights.
Employment-at-will is not fair because it refrains people from airing their opinions or conveying important information because of the fear of losing one’s job. It sends employees into a more submissive situation even under tough conditions when their grievances could probably be discussed through interactive communication. The agreement is not fair because it maintains rouge managers in the position of work at every point in the organization. Employees tend to please their superiors in order to keep their job instead of focusing on the realization of the company’s planned goals. Employment-at-will keeps the organization mired in fear and it derails the freedom of speech in the working environment. The worst part of this form of relationship is that employer can fire an at-will employee without consideration however ridiculous irrational the decision may be.
One important alternative to the employment-at-will contract is a collective bargaining agreement or contract employment formed between organization and union members. The alternative is essential as it provides conditions of employment that supersede the at-will doctrine. The contract can be helpful as it will specify the duration for employment as well as provide laid down reasons for firing employees (Robaj, 2020). The contract is also relevant as both the employer and employee come into facets of the job, including pay, duties, and working conditions.
3. Briefly discuss what Is the Montana Wrongful Discharge from Employment Act (WDEA) What do you see as the benefit of this act to employees? Employers?
Montana Wrongful Discharge Employment Act is an act founded by in 1987 by the State of Montana which statutory modifies the employment-at-will rule. The Act maintains the employment-at-will rule but it also advocates the legality of action for wrongful discharge. The Act lists three categories of employer actions that can make a discharge wrongful. One is an action where the employer has terminated a worker who refuses did not support the violation of public policy or who made a report of alleged misconduct. Secondly, a situation where an employer has acted against his or her personal work statement. An employer is obliged to follow his or her written personnel policies to the letter until they are rescinded (Schramm, 1990). Thirdly, where the employer has terminated an employee who has completed his or her probationary period without good cause.
The law is of many benefits to employees as it allows them to have extra protection and therefore, they cannot be wrongfully terminated. The Act protects employees who work under contract as the employer is mandated to follow the contract terms even throughout the termination process, and the employee must receive all the entitled fulfillments as per the law. Employees are also free to file a case to the attorney if they feel that they were wrongfully terminated. They have the freedom of speech because the Act does not infringe on their constitutional right to speech. They also have freedom from Political Belief Discrimination. Employees who become sick or disabled whether or not due to work-related causes are protected. Employees need not do polygraph tests but only under few exceptions.
The law is also important to employers since it allows them to adjust the terms of employment with employees at any time and for any reason without legal consequences. The act provides for arbitration of the dispute as an alternative to a lawsuit (Schramm, 1990). The arbitrations are mostly employers' benefit in that, arbitration is taking less time and It is less costly to defend when compared to a lawsuit. The arbitration creates less adverse publicity for the employer. The employer is also given a chance to participate in the selection of the arbitrator. The employer is granted permission to take disciplinary action against an employee for off-the-job activities where the conduct is regarded as a violation of the employer’s work rule.
4. Identify and discuss a minimum of three actions organizations may want to consider as they seek to handle employee termination legally .
It is important that the organization look deeply into various factors before laying off an employee. Some of the actions to be put into account include considering if the affected worker is covered by any agreement form. The employer is required to carefully evaluate the employee to be terminated, and investigate if he or she is registered, and is under the protection of federal, state, or local law (Pine, 2014). The employer is expected not to discriminate against the basis of race, sex, or any other factor. He or she should check if previous terminations had a significant effect on a certain group.
Employers should purposefully take into account any applicable form of contract or a personal laid down working agreement before terminating a worker. Union agreemeusuallyterminationateon unless under misconduct. Individual employment contracts also may limit termination without an indication of the adequate reason. Therefore, employers are mandated to establish the availability of a union or personal employment contract before proceeding to any action.
Thirdly, the employer should ensure that he or she purposefully discourages the transmission of confidential information to the outside world (Pine, 2014). There are instances where an employee has access to an organization’s internal secrets. This can be dangerous to the organization since the worker can use such information to blackmail or tarnish the firm’s name to the public. In that case, the employer has the mandate to get back the important information and close any pothole that can be used to get such crucial and confidential information by the terminated employee.
References
CLEAR HR CONSULTING, (202 0). How to Prevent Constructive Dismissal Claims. HR Consulting. https://clearhrconsulting.com/blog/hr-smalltalk/how-to-prevent-constructive-dismissal-claims/
Davoren, J. What is the Opposite of At-Will Employment? The nest. https://woman.thenest.com/opposite-atwill-employment-18331.html
FindLaw, (2020) Constructive Dismissal and Wrongful Termination . Thomson Reuters. https://employment.findlaw.com/losing-a-job/constructive-dismissal-and-wrongful-termination.html
Henson, C. (2015 ). In Defense of McDonnel Douglas: The Domination of Title v11 by the At-Will Employment Doctrine . John’s L. Rev, 89, 551
Pine, B. (2014). 10 things to consider when terminating an employee. THE BUSINESS JOURNAL. https://www.bizjournals.com/bizjournals/how-to/human-resources/2014/10/10-things-to-consider-when-terminating-an-employee.html
Raj, A. (2020). The legal nature of individual employment contract s in the spirit of Kosovo’s integration in the European Union . Tribuna Juridica. 10(21), 69-79
Schramm, H. (1990). Montana employment laws and the 1987 Wrongful Discharge from Employment Act: A new order begins. Mont.L. Rev, 51-94
