The following three legal encounters
evaluate laws and risk in the employment relationship. In each encounter, we
must consider what advice we would give. (University of Phoenix, 2014)
Legal Encounter 1
Conduct the Legal Issues in Reduction of Workforce
simulation.
What
legal issues are present? What alternatives does the manager have and what are
the benefits and liabilities associated with each choice? Identify legal
principles and law, both common and civil, which are relevant to your
discussion.
On instructions
from the senior management, the HR area should
dismiss three employees of a list of five that
have been identified as employees to be
laid off. Here are the chosen employees, and legal issues
that the company could
face as a result of that decision (University of Phoenix, 2014).
|
Employee
|
Liability
|
Rights/Benefits
|
Legal Principles
|
|
Brian Carter
|
He
has missed 17 days in two months of work due to being diagnosed with carpal
tunnel.
|
FastServe
is pulling out of the online media; his performance has not been great. The
work on the 3-D mannequins did not meet the business objective. FastServe
will consider providing outplacement support for Carter. He is an independent
contractor.
|
Brian
is an independent contractor position, which the risk of liability is greatly
reduced. According to Tort Liability, we are not responsible for Brian’s
diagnoses of carpal tunnel because under Common Law, the hiring party is not
responsible for the negligence of an independent contractor.
|
|
Jenny Mills
|
Pregnant
taking more breaks. Her pregnancy, her skill set is non-critical, cost
cutting.
|
Her
skill set is non-critical to the new direction of the company and we are
cutting cost, she is a contractor.
|
She may claim pregnancy discrimination, but she is
also a contractor. Jenny
may believe that her position is being terminated due to her pregnancy, which
possibly can lead to legal action. An employer may be likely to discriminate
if they hold prejudices against working women and mothers, fear the
productivity loss due to the absence of an employee, are unable to use
temporary employees, are unable to afford overtime pay for other employees to
fulfill the duties during leave, or believe that the employee will require
too many accommodations even after her return. This is not the case FastServe
is experiencing a reduction in force and Jenny’s position is no longer
needed.
|
|
Nora Manson
|
Her performance and productivity are constant
areas of concerns. She is an African-American worker, and also, a firebrand
feminist.
|
Her
skill set is non-critical to the new direction of the company and we are
cutting cost, she is a contractor.
|
She is most likely to file a discrimination
file. The company may expect a race or
color discrimination claim as soon as she is laid off. But she may have no
strong evidence to support that. Also, she is a contractor too.
|
Regarding to
discrimination because of race, The Constitution of the Commonweath of Puerto Rico on Article II, Carta de Derechos, Section 1 says: Dignity and equality
of human beings; say: “The
dignity of man is inviolable. All men are equal before the law No
discrimination shall be made on account of race, color, sex, birth, social
origin or condition, or political or religious ideas. Both the laws and the
system of public education shall embody these principles of essential human
equality".
In the
present case, Nora Manson could use this section to build a case alleging that
his dismissal is racial discrimination, but does not apply because it is not a
regular employee of the company, but an independent contractor and the laws of
Puerto Rico establish that under this classification, the employee may be
separated from employment at any time.
According to the Ley de Despido Injustificado (Ley de Mesada), Ley Núm. 80 de 30 de mayo de 1976, as ammended, Art. 2. - Just cause
for dismissal. (29 L.P.R.A.
sec. 185b) (f)
"Reductions in employment made
necessary due to a reduction in the volume of production, sales or profits,
anticipated or prevailing dismissal to occur."
Brian
Carter and Jenny Mills, could claim unfair dismissal, but in the cases discussed,
is clearly defined that the company is laying off these employees as a measure
to cope with the recession. It means that according to the Law of Puerto Rico,
layoffs are justified.
Newcorp can discharge their
employees for any reason as long as it is not from discrimination based on
color, sex, race, religion, age, and national origin (Cheeseman, 2010). The
court reasoned that when a company distributes a handbook with specific
policies or procedures they are choosing to implement or modify its existing
contracts with all employees covered by the handbook (Jennings, 2006).
Legal Encounter
2
|
Liability of NewCorp in this situation |
·
They
have to avoid that Paula files a sex discrimination case based on an
accusation of sexual harassment at work.
·
the
safety of his employee must ensure
·
Take
disciplinary action for his behavior toward Sam
·
Strengthen
the internal policies of relationships between employees
·
Strengthen
guidance to employees on sexual harassment at work
|
|
What
might NewCorp be able to do?
|
They can follow the estatutes of the Ley Núm. 17 del 22 de abril de
1988 en el Artículo
10.-
Every employer has a duty to keep the workplace free of sexual
harassment and intimidation and should clearly state its policy against
sexual harassment to their supervisors and employees and ensure that they can
work in safety and dignity . Fulfilling the obligation is imposed upon the
employer to prevent, deter and prevent sexual harassment in the workplace ,
it shall take such measures as are necessary or desirable for that purpose
including, but not limited to the following :
( a) clearly express to their supervisors and employees that the employer has a strong policy against sexual harassment in the workplace . ( b ) Implement the necessary methods to raise awareness and meet the prohibition of sexual harassment in the workplace . ( c ) Give sufficient publicity in the workplace , for aspiring to employment rights and protections that are granted and grants under this Act, under Act No. 69 of July 6, 1985 , the Act No. 100 of June 30, 1959 , as amended and the Constitution of the Commonwealth of Puerto Rico . ( d ) Establish an effective and adequate internal procedure to deal with complaints of sexual harassment. |
|
Legal
Principles Identified
|
Ley Núm. 17 del 22 de abril de 1988, Artículo 5. – An employer will be responsible for engaging
in sexual harassment in the workplace for their actions and the actions of
its agents or supervisors regardless of whether the specific acts at issue
were authorized or prohibited by the employer and regardless of whether the
wise employer or should be aware of such conduct.
The
particular employment relationship for purposes of determining whether the
person who committed the sexual harassment acted in his capacity of agent or
supervisor of the employer will be examined.
It will not be necessary to establish that the agent or supervisor who made the sexual harassment to the complainant directly supervised. |
|
US
Statutory or Case Law
|
In 1980
the Commission for Equal Employment Opportunity in the United States produced
a set of guidelines or rules to define and punish Title VII ( in 1984 it was
expanded to include educational institutions). The EEOC defines sexual
harassment as :
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:
1.
Compliance
is made either explicitly or implicitly in terms or as a condition of
employment so .
2.
Compliance
or denial of compliance by an individual is the basis for making employment
decisions affecting such individual , or
3.
Such
conduct has the purpose or effect of unreasonably interfering in the
efficiency of the work of an individual , or creating an intimidating ,
hostile or offensive work environment.
Points 1 . and 2 . are called " quid pro quo "
(Latin for " this for that" or " something for something
" ) . They are essentially " sexual bribery " or promises of
benefits and sexual coercion.
Type 3 .
is known as "hostile work environment " is by far the most common
form. It is less explicit and more subjective
|
|
PR
Statutory or Case Law
|
Ley Núm. 17 del 22 de abril de 1988, Artículo
9. –
An employer will be liable under
the provisions of this Act when performing any acts which adversely affect
the result of the opportunities, terms and conditions of employment of any
person who has opposed practices of the employer that are contrary to the
provisions of this Act or has filed a complaint or lawsuit, has testified,
assisted or otherwise has participated in an investigation, proceeding or
hearing that urge under this law.
|
Legal Encounter 3
What
liability, if any, does Yilmaz have in this situation?
According
to OSHA website, the following liabilities apply to the case we are discussing:
(1) Lack of a
systematic safety approach
(2) Inadequate documentation of safety efforts
(3) Sporadic or irregular safety meetings.
(4) Inattention to new-hire safety orientation
(5) No response to safety audits or recommendations
(6) Mishandling employee relations on safety issues
(7) Failure to regularly inspect work environment
(8) Overlooking industrial hygiene issues
(9) Nonexistent or unenforced safety rules
What
regulatory and compliance requirements and legal principles—statutory or case
law—are relevant to this situation?
According
to the Puerto Rico Occupational Safety and Health Act, on Section 8. Established Federal Standards
(a) The
Secretary may adopt at its discretion, any established federal standard, or
amendment thereto, in whole or in part, as applicable to the working conditions
in the Commonwealth of Puerto Rico, and he determines ensure maximum protection
safety and health of employees affected. In any case where the Secretary adopt
a federal standard set, or amendment thereto, existing in the Commonwealth of
Puerto Rico enacted a rule or in force under this Act relating to the same
matter, the existing standard will be left without effect immediately upon
adoption and the effective date of the federal standard set, or amendment
thereto. In any of the foregoing cases, the Secretary will not have to follow
the procedures set forth in Sections 9 and 11 (a) of this Act, except to give
public notice of its actions.
(b) Notwithstanding
the requirements of enactment of Law no. 112 of June 30, 1957, as amended, or
any rule established federal amendment thereto adopted by the Secretary shall
be effective thirty (30) days after it is filed with the Department of State of
the Commonwealth of Puerto Rico in English only, and meets the other
requirements of the Act. The Secretary shall file in the State Department, the
Spanish version of that standard or amendment no later than two (2) years after
the original filing date.
Conclusion
In all
discussed cases, it is important that the employer has adequate legal advice to
avoid lawsuits, legal fees and having to go through lengthy and costly legal
process. The management of each company must know the laws related to cases for
so make the best decisions on behalf of the company.
References
Cheeseman, Henry R. (2010) Business
Law, Legal Environment, Online Commerce, Business
Ethics, and Interrnational Issues,
Seventh Edition Chapter 1, Pearson Education, Inc., publishing as Prentice-Hall
Comisión para la Igualdad
de Oportunidades en el Empleo de los
Estados Unidos (EEOC), Guías o Reglas para Definir y Sancionar,
Título VII 1984
Constitución del Estado Libre Asociado de
Puerto Rico Articulo II, Carta de Derechos, Sección
1. Dignidad e igualdad del ser
humano; discrimen, prohibido
Jennings, Marianne M. Business
Ethics: Case Studies and Selected Readings. Cincinnati:
West,
3rd ed., 2006.
Ley de Despido Injustificado (Ley de Mesada), Ley Núm. 80 de 30 de mayo
de 1976, según
enmendada, Art. 2. - Justa
causa para el despido. (29 L.P.R.A. sec. 185b) (f)
Ley para prohibir el hostigamiento sexual en el empleo: imponer
responsabilidades y fijar
penalidades de 1988, Ley Núm. 17 del 22 de abril de 1988, Artículo 5,
Artículo 9 y
Artículo 10.
OSHA Laws and Regulations - https://www.osha.gov,
Retrieved on February 4th, 2014
Puerto Rico Occupational Safety and Health Act
http://www.safetypr.com/tools/Ley16FinalEsp
Retrieved on February 5, 2014
University of Phoenix, USA - Legal Issues in Reduction of Workforce Simulation,
Retrieved on
February 2, 2014
University of Phoenix, USA – NewCorp
Scenarios,https://newclassroom3.phoenix.edu/
context/co/view/activityDetails/activity,
Retrieved on February 2, 2014
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