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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:
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Reporting illegal conduct by the employer.
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Serving on a jury.
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Refusing to commit an illegal act.
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Pressing criminal charges against a co-worker
for something that occurred during the time of employment.
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Filing for workers’ compensation.
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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:
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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 |
