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Legally speaking
1 Mar, 2008 By: Kenneth D. Morris Landscape ManagementQ| One of my supervisors made inappropriate remarks to a female employee. Is firing the lout enough to protect me from getting sued by her?
A| Probably not. You should establish a company-wide training and educational program on all forms of discrimination, not just sex. The aim of a company-wide program should be to change inappropriate behaviors and reduce the risk.
Q| Anything else the "Code of Conduct" should contain?
A| Yes. The Code should contain a statement or disclaimer, which will typically state that it is designed both for members of management with supervisory duties, as well as for employees with conditions of employment. It should state it is not intended to alter the employment at-will status in any way. It neither creates an employment contract, nor the terms, nor limits the reasons or procedures for termination or change in the employment relationship. The Code should also reserve in the company the right to add, change, delete, or terminate provisions at any time without notice. The Code is a good place to have corporate statements prohibiting harassment, discrimination, sexual harassment or retaliation, for example.
Q| I have never asked my employees to sign Code of Conduct agreements. Am I vulnerable to a charge of wrongful termination?
A| Yes. Though the Employment At-Will Doctrine means that employers may terminate employees whenever and for whatever reason usually without consequence, this presumption may be overcome if the employee can show that there is an implied contract that alters the typical at-will status. The employee will have the burden to make such a showing. An explicit, signed reaffirmation of the at-will status or an acknowledgement of a disclaimer to form a contract may overcome the claim of an implied contract, and protect you from charges of wrongful termination.
Q| How would my employees prove discrimination?
A| In any number of ways. Evidence of remarks or documents that indicate a bias would do it. For example, evidence showing an internal document remarking that "you cannot teach an old dog new tricks" would tend to prove discrimination in an age case. Other ways include having evidence that (i) the performance evaluations recorded satisfactory work, notwithstanding poor performance, (ii) there was disparate treatment (female fired for poor performance, while a male with similar performance was given warnings or promoted), (iii) there was unfairness during the work period ("he wouldn't tell me why I was fired"); or (iv) the timing of the decision is suspect (discharging an employee two weeks after complaining about the amount of dust at work).
Kenneth D. Morris, a Philadelphia-based attorney with more than 30 years corporate and law firm experience, offers information on industry legal issues in each issue of LM. Contact him via www.kenmorrislaw.com.
Note:
The above should not be interpreted as offering legal advice in any jurisdiction where such practice is not authorized. Engage competent counsel familiar with your jurisdiction when legal issues arise.
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