TY Dolebot, see what you think of this
Covenant of good faith and fair dealing exceptions (aka. "Implied-in-law" Contracts)
See also: Quasi-contract
U.S. states with a covenant-of-good-faith-and-fair-dealing exception
Only eleven U.S. states have recognized a breach of an implied covenant of good faith and fair dealing as an exception to at-will employment.[
9] These 11 states are:
This exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception — at its broadest – reads a covenant of good faith and fair dealing into every employment relationship. It has been interpreted, by some courts, to mean either that employer personnel decisions are subject to a “just cause” standard or that terminations made in bad faith or motivated by malice are prohibited. (SEE JUST CAUSE BELOW)
Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. Other reasons an employer may NOT use to fire an at-will employee are:
• for refusing to commit illegal acts – An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• family or medical leave – federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• not following own termination procedures – often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.
Examples of federal statutes include:
• Equal Pay Act of 1963 (relating to discrimination on the basis of sex in payment of wages);
• Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);
• Age Discrimination in Employment Act of 1967 (relating to certain discrimination on the basis of age with respect to persons of at least 40 years of age);
• Rehabilitation Act of 1973 (related to certain discrimination on the basis of handicap status);
• Americans with Disabilities Act of 1990 (relating to certain discrimination on the basis of handicap status).
• The National Labor Relations Act provided protection to members of labor unions, but this portion of the Act has been repealed.
In the workplace, Just Cause is a burden of proof or standard that an employer must meet to justify discipline or discharge. Just Cause usually refers to a violation of a company policy or rule. In some cases, an employee may commit an act that is not specifically addressed within the employers policies but one of which the employer believes warrants discipline or discharge. In such instances, the employer must be confident that he can defend his decision.
When an arbitrator looks at a discipline dispute, the arbitrator first asks whether the employee's wrongdoing has been proven by the employer, and then asks whether the method of discipline should be upheld or modified. In 1966, Professor and Arbitrator Carroll Daugherty expanded these arbitration principles into his famous seven tests for just cause. The concepts encompassed within his seven tests are still frequently used by arbitrators when deciding discipline cases.
Daugherty's seven tests are as follows: Was the employee forewarned of the consequences of his or her actions? (NO but several were fabricated) Are the employer's rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? (What rules? Raises and 2 promotions should ans this question) Was an effort made before discharge to determine whether the employee was guilty as charged? (NO) Was the investigation conducted fairly and objectively? (NO) Did the employer obtain substantial evidence of the employee's guilt? (No because there was NONE) Were the rules applied fairly and without discrimination? (NO) Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record? (ABSOLUTELY NOT, she had been considered a super star before new boss arrived)
The last test, the degree of discipline, is important because arbitrators want to ensure that the "punishment fits the crime." An employer's use of progressive discipline often gives the employer an advantage in arbitration. The culture of the community or community standards sometimes play an important role in how Just Cause is defined, especially if there are issues of immorality. What is accepted in an urban and liberal community may not be accepted in a rural and religiously conservative community. The courts or arbitrator who will rule on a challenge to the discipline may be a product of those communities. Just Cause can become controversial in instances when the employers personnel policies do not address a specific act but the employer believes that Just Cause exists. For example, if an employee is arrested and charged with a misdemeanor, the employer may deem that sufficient cause for dismissal, even if the employee is not incarcerated or is not convicted.
Retrieved from "http://en.wikipedia.org/wiki/Just_cause"
Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. It follows that the scope for wrongful dismissal varies according to the terms of the employment contract, and varies by jurisdiction. Note that the absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.
Wrongful dismissal will tend to arise first as a claim by the employee so dismissed. Many jurisdictions provide tribunals or courts which will hear actions for wrongful dismissal. A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.
A related situation is constructive dismissal, in which an employee feels no choice but to resign from employment for reasons imposed by the employer.
One way to avoid potential liability for wrongful dismissal is to institute an employment probation period after which a new employee is automatically terminated unless there is sufficient justification not to do so. The dismissed employee may still assert a claim, but proof will be more difficult, as the employer may have broad discretion with retaining such a temporary employee. (THEY HIRED SOMEONE ELSE ON A FULL TIME BASIS)