HRM 3304 Unit II Project, Workplace Policy regarding the wrongful discharge tort

For this assignment, you will prepare a workplace policy to demonstrate your understanding of this unit’s concepts and provide a written rationale for your policy that presents thorough analysis using strong argument and evidence.

First, choose one of the common workplace torts discussed in the Required Unit Resources for this unit (other than genetic testing).

Prepare a detailed and specific policy for your employer that balances both the employer and employees' rights. This policy must be no longer than one page in length.

Next, write a two-page rationale for your policy in which you include the following:

• Explain the foundation and necessity of the policy,.

• Discuss how the policy balances employee and employer rights.

• Offer evidence of your state and/or federal laws that support or relate to your policy.

Workplace Policy regarding the wrongful discharge tort

Introduction

The concern of Torts is with civil wrongs. The tort is a civil wrong for which the Courts will fix the damages as a form of compensation (Kmlegal.com, 2020). In the law of Torts, the claimants have a duty of ensuring that they prove they suffered damage as a result of the actions of the defendant. In case the answer to the question of whether the claimants suffered damage as a result of the actions of the defendant is yes, then in legal terms, the causation effect would already been satisfied and the damages that should be paid should restitute the claimant back to the original position before the damages.

Common Workplace Tort: The wrongful discharge tort

The wrongful discharge tort occurs when an employee sues a company because he/she feels that they have been terminated wrongly because they refused to follow an illegality that had been committed in the organization (Department of Labor and Employee Relations, n.d.). A wrongful termination occurs in the event an employee is discharged for other reasons other than the allowable ones. For example, if the worker is let go because of their sexual orientation, then this case can qualify as a wrongful discharge tort. The employee can sue so that they are restituted to their original position before the dismissal. Employees have protections under the Title VII of the Federal law statutes and as a result, they cannot be dismissed wrongly as a result of issues such as disability, race, gender, religion or after refusal to follow a certain culture that they do not subscribe to.

Organizational policy regarding the Wrongful discharge Act

The policy is meant to offer guidance to the organization with regards to wrongful discharge act. The main elements of the policy include a discussion of the rights of the employee and the rights of the employer who are embroiled in the wrongful discharge case.

Employers have a right to only fire the employees as a result of just cause. In the suit of unfair dismissal or wrongful discharge, they have a right of reply and offer evidence to show that the employee was let go on fair grounds.

According to the Bureau of Labor Statistics, some of the just causes that are given for the firing of the employees include the following: The employee has committed gross misconduct, there is dereliction of duty, habitual poor performance without showing any signs of improving the organization performance, bridging the trust and confidence and committing fraud (Department of Labor and Employee Relations, n.d.).

This policy also proposes that some of the economically allowable instruments of termination of employees include: the company proofing that it wants to let go some of the workers as a result of the need to save some costs in the organization. The company can also terminate the workers as a result of ceasing operations, the need to reduce workforce or after putting in place the redundancy policies in the organization.

Rights of the employees

The workers are under the Whistleblower protection policy of the organization which is meant to protect the workers who have been terminated because they refused to engage in an illegality or a fraudulent activity in the organization. In terms of insubordination, gross misconduct or indiscipline, the employees reserve the right to be heard instead of being condemned without a thorough examination of the disciplinary issues that have been brought before the committee.

Foundations of the wrongful discharge policy

In 1983, the New York Appeals Court was compelled to accept the jurisdictions and the efforts that other courts of the land had in trying to establish the causes for discharge of employees. The law was meant to act as a source of protection for the employees who were employed at will and they could be fired at the whims of the employer (Hitchcock, 1983). The wrongful discharge tort also has some background in the Equal Employment Opportunity Act and the Equal Employment Opportunity Commission which is the basic federal law that seeks to prevent the employees from facing further discrimination from the organization. In 1964, the Congress of the United States enacted a policy meant to stop the employers from participating in wrongful dismissal of employees. Companies do become subjects of this specific regulation if the law sees that they have more than 15 employees.

Discussion of how the policy balances the rights and duties of the employee versus the rights of the employee

Any law or regulation that seems not to be well thought out can be manipulated by the organization. Therefore the policy has worked at the need to ensure that the rights of both entities are balanced because it does not want to envision a situation where the employees and union hold the organization hostage by not performing, participating in indiscipline activities etc., since these workers know clearly that the organization cannot terminate their contracts because they are protected by the law. The policy also allows the employers to not fire the employees at will because they are discriminating them or they do not like them.

Evidence of the Support from the State regarding the law

The State of Montana has certain provisions regarding the wrongful termination clauses. According to the State, the discharge suits need to be filed within one year of the employee being relieved of their duties in the organization (MACo, 2021). Accordingly, the suit should be served to the affected parties within six months. For the employers the law provides them with 14 days to ensure that the grievance procedures are duly filed.

References

Department of Labor and Employee Relations. (n.d.). DOLE Clarifies Rules on Termination of Employment | Bureau of Labor Relations. https://blr.dole.gov.ph/2015/11/12/dole-clarifies-rules-on-termination-of-employment/

Hitchcock, J. (1983). State Actions for Wrongful Discharge: Overcoming Barriers Posed by Federal Labor Law Preemption. California Law Review, 71(3), 942. https://doi.org/10.2307/3480306

Kmlegal.com. (2020, April 23). Wrongful Discharge. Www.kmblegal.com. https://www.kmblegal.com/resources/wrongful-discharge

MACo. (2021, July 1). Changes to the Montana Wrongful Discharge Act. Montana Association of Counties (MACo). https://www.mtcounties.org/news/state-news/changes-to-the-montana-wrongful-discharge-act/