TheEmployment at-will Doctrine
OrganizedCrime in Japan
Initially,courts viewed the relationship between the employer and employee asequal based on their ability to bargain. The employment-at-will rosefrom the assumption of the mutual relationship between the two. Thesituation allowed free movement of employees in organizations attheir convenience, abilities, and preferences. Formation of unions inearly 20th Century to protect the rights of the employees and preventintimidation from employees ensured the erosion of theemployment-at-will doctrine (Swift, 2011). The Conservative notionthat good performers deserved job security lost its relevance withthe development of industrialization around the world. Both employeesand employers obtained the liberty to determine when they stopworking together. The early Courts acknowledged the trend andregarded the will to engage in a contract without written evidenceand quit the job to pursue better opportunities. Employment becamepopularly indefinite in both developing and developed countries.Since the 19th Century, with the establishment of industrializationin Europe, the Courts have restructured and adapted the law to fitthe demands and needs of workers. In the 21st Century, the lawprovides exceptions to the doctrine of ‘at will’ employment thatlimits the employer from acting without justifiable causes.
Amongthe most common cases that bar employers from terminating theircontracts with employees include a worker’s refusal to violate thelaw at their boss’s instruction or claiming compensation over aninjury incurred at work. Most of the States implemented this law toregulate the employment-at-will Doctrine. The need for regulation ofthe phenomenon has resulted in an increased concern to protect therights of employees (Swift, 2011). Different states have varyingcriterion for regulating their policies consequently giving rise to awide choice of alternative theories (such as property theories andtort).
Moststudies show that the state of California is among the few statesthat still emphasize the at-will employment to date. The CaliforniaLabor Code, for instance, permits a California employer to terminatean employee for any cause and time in the absence of a writtenagreement or contract. Like other states, however, the courts inCalifornia enhance the exceptions to limit the employer’s abilityto terminate their subordinates unfairly. The Code states that eitherparty may terminate an employment that has no specified term. Thislaw recognizes work periods exceeding a month for specified-termcontracts (Muhi, 2009).
Inthe case where John posted a rant on his Facebookpage condemning a customer that the organization considers as themost important, the employer has a right to be furious. However, thedecision to fire John would be an extreme form of punishment based onfury rather than a discipline action. Since John’s Facebook accountis his personal space on social media, he has a right to give hisopinion regardless of the fact that it affects the company. John’sissue may be a personal issue with the customer besides officialbusiness with the Company (Lloyd, 2014). As the Chief OperatingOfficer, I would, instead of sacking John, reconcile him with thecustomer privately by making him understand the impact of his actionson the good of the company.
Bill,who uses the Company phone to pursue his personal business, deservesa disciplinary action that does not involve ending his contract withthe enterprise. As the Chief Operating Officer, I would calculatehis profits arising from utilizing the company resources and deductfrom his earnings as punishment for his actions. I will also warn therest of the employees to ensure they are not only aware of theconsequences but also refrain from other forms of exploitingresources illegally (Lloyd, 2014).
Inthe scenario where a secretary who refused to conduct illegalbusiness on behalf of his boss (scenario 5), I would help the victimto press charges on the boss. I will enlighten the decoratedsecretary of her rights and the importance of transparency to protecther from manipulation by her boss. Since the boss approached me tofire the secretary unfairly, I would ensure the prosecution processto impact confidence to other junior members of the company facingsimilar intimidation cases.
Noevs. Levy Premium Food Service Ltd. No. B259570 (Cal. June 1, 2015)
Since2013, several employees working in food and beverage companies suchas Levy and Canvas sued their companies. All their complaints soughta wage-versus-hour class action. The companies resisted the workers’expectation to pay minimum wage while willfully misclassifying themas autonomous contractors. In response, Levy and AEG Limited filedmotions for summary judgment based on the argument that they are notliable under the Section 226.8 of the Labor Code. The court ruledagainst the companies in both cases giving the workers the right topursue their claims. It denied the companies’ motions because theydid not define classifications (Askanas, 2015).
Inthe case filed by Jerry Noe, who filed against his company (the LevyPremium food service), the company faced charges of misclassificationof individuals. The California Court of Appeal ruled that it isunlawful for any employer to misclassify an employee as anindependent contractor. The court proceeded to enhance the ruling toinclude an employer who is aware of misclassification and fails tocorrect the condition. The employer will be held responsible orliable under the Labor Code Section 226.8. In a partnership, theco-employer is also liable jointly in failing to remedymisclassification. The California Labor Code states that it isillegal for any employer to participate in willful misclassificationof any worker as an autonomous contractor (Section 226.8 (a) (1)).
Accordingto Lloyd, the offense of willful misclassification involves anemployer’s refusal to acknowledge an individual the status of anemployee. In this case, the employer willfully regards the individualas an independent contractor. The section (226.8) imposes civilpenalties not exceeding $ 25,000 for offenders. This law also appliesto joint employers.
Theemployment-at-will rose from the assumption of the mutualrelationship between employers and employees that allowed freedom toswitch between contracts without necessarily recording theagreements. However, the need for regulation and justice called foramendments to the law. The decision to form unions in aimed atprotecting the rights of the employees and prevent intimidation fromemployees ensured the erosion of the employment-at-will doctrine.
InCalifornia, the employment-at-will law has undergone massiveadjustment and amendment by enhancement of exceptions. The CaliforniaLabor Commissioner is responsibility to enforce the Labor Code(including Section 226.8) that prevents an employer from exploitingan individual
Courtstraditionally regarded the relationship between the employer andemployee as equal-footed based on their bargaining power. The case ofNoe versus Levy Premium Food Service Limited, among others,highlighted the role of the employee in ensuring justice andcompensation according to their rights.
AmyC. Stohon, Thomas C. Welshonce and J. Daniel Hull (2013) IsCalifornia Still an At-will Employment State?Hull McGuire PC Attorneys.
BruceLloyd (2014) Power, Responsibility and Wisdom: Exploring the issuesat the core of Ethical Decision-Making and Leadership. Journalof the London South Bank University.
CharlesMuhi (2009) The Employment at Will Doctrine: three major exceptions.The Month Labor Review.
KennethR. Swift (2011)ThePublic Policy Exception to Employment At-Will: Time to Retire a NobleWarrior?Employment at Will. Legal Information Institute. Pennsylvania Print
MarkS. Askanas (2015) JointEmployers Can be Held Liable for employee Misclassification,California Court rule.Retrieved from www.Jacksonlewis.comon 5thFebruary 2016