Healthcare

Helpm31990

9781284538588_SLID_CH19.pptx

Home >Human Resource Management homework help >Healthcare

Employment-At-Will and Discharge

Chapter 19

LEARNING OBJECTIVES – I

Discuss the “Employment at Will” doctrine.

Explain public policies that protect employees from unlawful discharge.

Describe what is meant by retaliatory discharge & how to defend a claim for unfair discharge.

Describe under what circumstances employers often discharge an employee.

Describe effective hiring practices & importance of clear communications.

Employment-at-Will

Doctrine

Employment is at will of employer or employee

Employment may be terminated

at any time

for any or no reason

unless a contract in place specifying terms & duration of employment

An at will prerogative without limits could be suffered only in an anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. −Sides v. Duke Hospital

Employment-at-Will – II

Historically

termination of for any reason widely accepted.

Growing trend toward a restricted application of the at-will employment rule whereby right of an employer to discharge at-will employee without cause

limited by either public policy considerations

or implied covenant of good faith & fair dealing.

Employment-at-Will – III

Fairly balancing rights of employee & needs of organization complex objective

Chapter provides direction in balancing act rights

Employment-at-Will – IV

Embroiled in combination of legislative enactments & judicial decisions.

Some states more employer oriented.

e.g., New York

Other states in harmony with constitutional rights of employee.

e.g., California

A Civilized State

“obvious and indisputable fact that in a civilized state where reciprocal legal rights & duties abound, the words "at will" can never mean "without limit or qualification," as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily & inherently limited by the rights of others & the interests of the public. An at will prerogative without limits could be suffered only in an anarchy . . . .

−Sides v. Duke Hosp.

Public Policy Issues

Public policy originates with legislative enactments.

Public policy exceptions to the employment-at-will doctrine

employees may not be terminated for reasons contrary to public policy (see next two slides)

Public Policy Issues – II

Disability

Age

Race

Color

Religion

Sex

National origin

Pregnancy

Public Policy Issues – III

Reporting Patient Abuse

Whistle-blowing

Whistle-Blower Suit Untimely

Text Case: Paving Her Way to Heaven

Union Membership

Filing of safety violation complaints

e.g., OSHA

Public Policy Issues – IV

“It can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. It is to be found in the states constitution and statutes and, when they are silent, in its judicial decisions.”

−Palmateer v. International Harvester Co.

Retaliatory Discharge

Termination of an employee generally for reasons other than work-performance related causes.

cannot be used as a means of oppression

employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee.

Retaliatory Discharge Shores v. Senior Manor Nursing Center

Employed nurse’s assistant brought an action against nursing facility for retaliatory discharge.

for reporting to the nursing home administrator that the charge nurse was performing her nursing functions improperly.

Appellate Ct. held: the nurse stated a cause of action for retaliatory discharge.

Retaliatory Discharge Dalby v. Sisters of Providence

Pharmacy technician alleged she was discharged for reporting to her supervisor inaccuracies in the drug inventory and that recordkeeping.

Ct. of App. held the technician stated a cause of action for:

wrongful discharge

intentional infliction of emotional distress

Fairness the Ultimate Test

Bad-faith & inexplicable terminations are subject to scrutiny of the courts..

Renny v. Port Huron Hospital

Ct. found: sufficient evidence for jury to find the employee had not been discharged for just cause.

Termination

Employment Disclaimers

denial of a right that is imputed to a person or that is alleged to belong to him or her

Termination for Cause

Termination and Financial Necessity

Hostile Attitude

Poor Work Performance

Alcoholism

Insubordinate Behavior

Defending Wrongful Termination Case – I

Meeting minutes

Written reports, typed or handwritten

Personnel file

Tapes

Letters, cards, and handwritten notes

Personnel handbook

Personnel and departmental policies and procedures books

Oral testimony from fellow employees and supervisors

Constructive Discharge

Work environment where an employee is pushed to quit a job

employer has made working conditions intolerable

Employee must prove

working conditions were constructively made intolerable

continuous pattern of employer misconduct

any reasonable person would or did resign

Termination Questions to Ask – I

Was there a violation of public policy?

Was discharge being retaliatory in nature?

Was there a refusal to perform an illegal act?

Was the employee questioning a management practice?

Was termination arbitrary and capricious decision?

Termination Questions to Ask – II

Was there a violation of any contract, oral or written?

consistent with the reasons for discharge?

Was there discrimination against the employee for filing a lawsuit?

Was there interference with an employee’s rights as secured by the laws or Constitution of the United States (e.g., right to freedom of speech)?

Termination Questions to Ask – III

Was termination fixed?

don’t confuse me with the facts

“I’ve made up my mind!”

foregone conclusion

before any appeal actions can be taken

Effective Hiring Practices

Clear Policies & Procedures

hiring

disciplining

terminating

P & Ps & Handbooks

reserve right to add, delete, revise

Application

Background checks

Effective Hiring Practices – II

Familiarity with state laws

Interviews

human resources

Supervisor

References

follow up with a telephone reference

Employee handbook & job description

document employee read, & understood handbook & job description

Effective Hiring Practices – III

Constructive performance evaluations

Progressive disciplinary action policy

In-service education programs

interviewing techniques

performance evaluations

disciplinary actions

Contract language

CLEAR COMMUNICATIONS

Communicate clearly to prospective employees

employment is at will

employment can be terminated at any time

Handbooks & personnel manuals

fair & unambiguous standards

REVIEW QUESTIONS – I

Discuss the employment at-will doctrine.

Is employment-at-will doctrine appropriate in today's society? Discuss your answer.

What are public policy exceptions to employment-at-will doctrine?

REVIEW QUESTIONS – II

Discuss questions employer should ask prior to discharging an employee.

What approach might you take in defending a case for wrongful discharge?

Discuss what hiring practices an employer can put into action to help reduce necessity for discharging an employee.