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  Oracle Tips by Burleson

Implied Contract Limitation

A written or oral statement by the employer creates an implied employment contract. This can occur, for example, if an IT manager verbally tells the employee that their job is permanent for whatever reason. 

Public Policy Limitation

Public Policy Limitation provides rights based on Federal or State laws, or on the understanding that actions are socially or morally wrong. For example, it would be illegal to fire an employee for reporting an employer that misrepresents company financial statements. Fired employees have won lawsuits against their employer based on public policyviolations in the following situations:

  • Reporting illegal conduct by the employer.
     

  • Serving on a jury.
     

  • Refusing to commit an illegal act.
     

  • Pressing criminal charges against a co-worker for something that occurred during the time of employment.
     

  • Filing for workers’ compensation.
     

  • Military leave.

Serving on a jury has certain protections for the employee under Federal laws against discharge, threats, and intimidation.  The Jury System Improvement Act of 1978permits an employee to take leave while serving on a jury and continue receiving benefits. Upon return from leave, the employee must be reinstated without losing job seniority.

A programmer on extended leave can seriously impede job schedules and hurt the department.  There are a few technicalities that can be used to release an employee that has taken extended leave if the extended leave agreement is constructed properly. For example, it would be a good idea to add the following text into the agreement that is signed by the employee.

“I understand that my failure to return to work on the first scheduled workday after my leave has expired or if my leave is cancelled will result in my termination of employment.”

One slip up by the IT employee returning from leave that misses the first day back on the job will be surfing the webfrom home looking for a new job. There are many statute guidelines that constitute what is a valid leave request and who is eligible. The employer should know these guidelines in detail since a person on leave who was truly not eligible or intentionally falsified information can be fired.

The general rule for the length of extended military leave that entitles an employee to employment reinstatement upon return to work is a maximum of five years. Therefore, an employee who goes beyond five years of continuous military leave before returning to work is not entitled to reinstatement and may be fired. The laws are not as advantageous to employees on leave in protecting their right to return to employment as many suspect.

The employer is not required to reemploy an individual that has taken leave if any of the following are true:

  • Circumstances have changed for the employer during the period of leave, such that reinstatement is impossible or unreasonable.
     

  • Reinstatement of employment causes undue hardship to the employer.
     

  • The job which the employee formerly held was not of a recurring nature (that is part-time or seasonal).

The employer should maintain company policies regarding all areas of public policy. For a sample Military Leave Policy Statement, see Figure 5.9. This statement is presented in a more general nature and should have much more detail incorporated for other provisions such as compensation, reemployment rights, notice of return to work, discharge for cause, health benefits, seniority and non-seniority based benefits, and pension rights. This statement must be reviewed and approved by an attorney concerning all possible legalities.

IT employees who are wrongfully discharged for public policyviolations will frequently receive additional monetary damages for behavior by employers that cause emotional distress. Not only do some employers violate these rights of employees, but they also add insult to injury by committing further egregious acts.


The above book excerpt is from:

You're Fired! Firing Computer Professionals

The IT manager Guide for Terminating "With Cause"

ISBN 0-9744486-4-8

Robert Papaj 

http://www.rampant-books.com/book_2005_1_firing.htm

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