Wrongful termination and laws or acts that can be cited to support claim

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Please make sure you use proper academic resources and proper APA standards for each answer. Requires 3000 word count and at least four citations.

A manager at an airline raised concerns about the airline’s pay practices. She also complained that the performance appraisal process discriminated against female employees. After a number of run-ins with her supervisor, the supervisor determined that the woman “could not be trusted in a leadership position.” At a subsequent meeting between the employee, the supervisor, and an HR representative, the employee was told that she had the option of resigning or accepting a non-management, part-time customer service position in a different state. The woman said that she could not leave Colorado because of her three children. She eventually submitted a letter of resignation.

1.Can the woman still sue for wrongful termination? Why or why not?

2.What Laws or Acts will the woman cite in support of her claim and why? Please be specific.

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chapter 1 Overview of Employment Law The purpose of this first chapter is to present a big picture of the body of law that G we will apply to particular human resource practices throughout this book. This Aoverview of employment laws, the rights they confer on emchapter contains an ployees, and the processes involved in enforcing these laws. Special attention is T given to the use of alternatives to litigation to resolve employment disputes. E S Heard at the Staff Meeting , Congratulations on your new job as human resources manager! You pour a cup of coffee and settle into your seat to hear the following reports from staff members: D interns from a local college to take the place of vacationing staff “We’ve lined up some members this summer. E We won’t pay the interns, of course, but hopefully they will be selfstarters who can make a real contribution.” “In the interestA of security, we now have a firm that checks the backgrounds of our job candidates. Anyone N with an arrest or conviction is immediately dropped from consideration for employment.” D employees are in the Army Reserves. One of them has been deployed “A number of our to Afghanistan twice R and has missed more than two years of work. She will be returning to the United States soon and has indicated that she wants her job back. Her supervisor believes that since A her job skills are now out of date and she might be deployed again at any time, it would be best not to reinstate her.” “With health insurance being so expensive these days, we’re requiring all of our appli1 cants to complete lengthy medical histories, including whether certain diseases run in their families.” 1 You get up to get 2 another—large—cup of coffee and feel fortunate that you were paying attention during that employment law class you took. 3 What legal issues emerged during this staff meeting? What should this company be doT comply with the law? Although you might not encounter this many ing differently to better legal problems in one Ssitting, employment law pervades virtually every aspect of human resource practice, and managers regularly confront employment law questions. 3 9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh - © Cengage Learning. All rights reserved. No distribution allowed without express authorization. 4 Part 1: Introduction to Employment Law U.S. Employment Law Is a Fragmented Work in Progress “Just tell me what the law is, and I’ll follow it.” Were matters only that simple! No single set of employment laws covers all workers in the United States. Instead, the employment law system is a patchwork of federal, state, and local laws. Whether and how laws apply also depend on such things as whether the employees work for the government or in the private sector, whether they have union representation, and the size of their employer. Our principal focus will be on federal laws because these reach most widely across U.S. workplaces and often serve as models for state and local laws. However, we will also mention significant variations in the employment laws of different states. There is another problem with the idea of just learning the legal rules and adhering to them. Employment law is dynamic. New law is created and old law is reinterpreted continuously. Further, changing workplace practices pose new legal questions. At any point in time, there are “well-settled” legal questions on which there is consensus, other matters G that are only partially settled (perhaps because only a few cases have arisen or because courts have issued conflicting A decisions), and still other questions that have yet to be considered by the courts and other legal decision makers. Attaining a solid grasp of employT ment law principles will allow you to make informed judgments in most situations. You must be prepared to tolerateE some ambiguity and keep learning, however, as the law of the workplace continues to develop. S , Sources of Employment Law What comes to mind when you think of the law? Judges making decisions in court cases? D Congress legislating? The Constitution? All of these are parts of the law in general and ­employment law in particular. E Legal rules governing the workplace are found in the U.S. Constitution and state constitutions, statutes enacted by legislatures, executive orders A ­issued by presidents and governors, regulations created by administrative agencies, and ­judicially authored common Nlaw. All of these pieces of law are regularly interpreted and ­expanded on by the courts as they are presented with specific legal disputes (cases) to D ­decide. Distinguishing between these basic sources of law is useful because some forms of R others, apply to particular groups of employees, or provide law are more authoritative than for different enforcement mechanisms and remedies. A Constitutions Constitutions are the most 1 basic source of law. Constitutions address the r­ elationships ­b etween different levels of government (e.g., states and the federal government) and ­b etween governments and1their citizens. A legal claim based on a constitution must ­generally assert a violation of 2 someone’s constitutional rights by the government (in legal ­parlance, the element of “state action” must be present). In practical terms, this means that 3 usually only employees of government agencies—and not employees of private corporations—can look to the U.S. Constitution or state constitutions for protection in the workT place. Constitutional protections available to government employees include speech rights, S freedom of religion, protection from unreasonable search and seizure, equal protection ­under the law, and due process rights. Statutes In our system of government, voters elect representatives to legislative bodies such as the U.S. Congress. These bodies enact laws, or statutes, many of which affect the workplace. Among the many important statutes with implications for human resource practice are 9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh - © Cengage Learning. All rights reserved. No distribution allowed without express authorization. Chapter 1: Overview of Employment Law 5 Title VII of the Civil Rights Act, the National Labor Relations Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Employee Retirement Income Security Act. Executive Orders The executive branch of government has the power to issue executive orders that affect the employment practices of government agencies and companies that have contracts to provide goods and services to the government. Executive orders function much like statutes, although they reach fewer workplaces and can be overridden by the legislative branch. One important example of an executive order affecting employment is Executive Order (E.O.) 11246, which establishes affirmative action requirements for companies that do business with the federal government. Regulations, Guidelines, and Administrative Decisions G a statute, it often creates an agency, or authorizes an existing one, to When Congress enacts administer and enforce A that law. Legislators do not have the expertise (and sometimes do not have the political will) to fill in all the details necessary to put statutes into practice. For T example, Congress mandated in the Occupational Safety and Health Act that employers provide safe workplaces but largely left it to the Occupational Safety and Health AdminE istration (OSHA) to give content to that broad principle by promulgating safety standards governing particularS workplace hazards. Formal regulations are put in place only after an elaborate set of requirements for public comment and review has been followed. Regula, tions are entitled to considerable deference from the courts (generally, they will be upheld when challenged), provided that the regulations are viewed as reasonable interpretations of the statutes on which D they are based.1 Agencies also contribute to the law through their ­decisions in individual cases that are brought before them and the guidance that they E ­provide in complying with laws. A Common Law N Many disputes are resolved through courts interpreting and enforcing the types of law D discussed earlier. However, sometimes courts are asked to resolve disputes over matters R of legislation or regulation. Over time, courts have recognized that have not been objects certain common law claims to remedy harm to people caused by other people or comA panies. Common law is defined by state courts, but broad similarities exist across states. One branch of common law is the traditional role of the courts in interpreting and enforcing contracts. The other 1 branch is recognition of various tort claims for civil wrongs that harm people. Tort claims relevant to employment law include negligence, defamation, ­invasion of privacy, 1 infliction of emotional distress, and wrongful discharge in violation of public policy. 2 3 SubstantiveTRights Under Employment Laws Employment laws confer S rights on employees and impose corresponding responsibilities on employers. Paradoxically, the starting point for understanding employee rights is a legal doctrine holding that employees do not have any right to be employed or to retain their employment. This doctrine, known as employment at will, holds that in the absence of a 1Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984). 9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh - © Cengage Learning. All rights reserved. No distribution allowed without express authorization. 6 Part 1: Introduction to Employment Law contract promising employment for a specified duration, the employment relationship can be severed at any time and for any reason not specifically prohibited by law. Statutory and other rights conferred on employees have significantly blunted the force of employment at will. But in the absence of any clear right that employees can assert not to be terminated, employment at will is the default rule that permits employers to terminate employment without needing to have “good” reasons for doing so. Broadly speaking, employees have the following rights under employment laws. Nondiscrimination and Equal Employment Opportunity A central part of employment law is the set of protections for employees against discrimination based on their race, sex, age, and other grounds. The equal protection provisions of the U.S. Constitution (Fourteenth Amendment), Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act are examples of federal laws that prohibit discrimination in employment and express the societal value of equal employment opportunity. G Freedom to Engage inAConcerted Activity and Collective Bargaining Another approach to protecting T workers is to provide them with greater leverage in dealing with their employers and negotiating contractual standards of fair treatment. Labor laws exist to protect the rights ofE employees to join together to form labor unions and attempt to improve their terms and S conditions of employment through collective bargaining with their employers. Important federal labor laws include the National Labor Relations Act, , the Railway Labor Act, and the Civil Service Reform Act (covering collective bargaining by federal government employees). D Terms and Conditions of Employment That Meet Minimum Standards E Some employment laws protect A workers in a more direct fashion by specifying minimum standards of pay, safety, and other aspects of employment. Federal laws exemplifying this N approach include the Fair Labor Standards Act (minimum wage and overtime pay requirements), the Occupational Safety D and Health Act (workplace safety standards), and the Family and Medical Leave Act (leave policy requirements). R A Protection of Fundamental Rights Some legal challenges to employer practices are based on broader civil liberties and rights. For example, a variety of privacy protections exist, including privacy torts, the Electronic 1 the Employee Polygraph Protection Act, and the Fair Credit Communications Privacy Act, Reporting Act. 1 2 3 to recover damages when, for example, they are the vicEmployees can take legal action tims of employer negligence,Tare defamed, or have emotional distress inflicted upon them; their employment contract is breached; or they are wrongfully discharged. In the Casias v. Wal-MartSStores case that follows, a terminated employee sues his forCompensation for Certain Types of Harm mer employer. Although one might sympathize with the employee under the facts of this case, it is apparent from this decision that employment at will still presents a large hurdle for terminated employees. 9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh - © Cengage Learning. All rights reserved. No distribution allowed without express authorization. Chapter 1: Overview of Employment Law Casias v. Wal-Mart Stores 695 F. 3d 428 (6th Cir. 2012) O pinion by Ci rc uit Judge Clay: In this wrongful discharge action, Plaintiff Joseph ­Casias, a former Wal-Mart employee, appeals the district court’s . . . dismissal [of his lawsuit] for failure to state a claim following his termination for failing a drug test in violation of Defendants’ drug testing policy. . . . [W]e AFFIRM the judgment of the district court. * * * Plaintiff was an employee of Wal-Mart’s Battle Creek, Michigan store from November 1, 2004 until November 24, 2009, when Plaintiff was terminated G from Wal-Mart after he tested positive for marijuana, in violation of the company’s drug use policy.A Plaintiff was diagnosed with sinus cancer and an T his inoperable brain tumor at the age of 17. During employment at Wal-Mart, Plaintiff enduredEongoing pain in his head and neck. Although his oncologist S prescribed pain relief medication, Plaintiff continued to experience constant pain as well as other side , effects of his medication. After Michigan passed the MMMA [Michigan Medical Marihuana Act] in 2008, Plaintiff ’s oncologist recommended that he try marijuana D to treat his medical condition. The Michigan Department of Ecard on Community Health issued Plaintiff a registry June 15, 2009, and, in accordance with state law, he beA gan using marijuana for pain management purposes. N of pain Plaintiff stated that the drug reduced his level and also relieved some of the side effects from his other D pain medication. Plaintiff maintains that he complied with the state laws and never used marijuana Rwhile at work; nor did he come to work under the influence. InA stead, Plaintiff used his other prescription medication during the workday and only used the marijuana once he returned home from work. 1 In November 2009, Plaintiff injured himself at work by twisting his knee the wrong way while 1 pushing a cart. Plaintiff contends that he was not under the influence of marijuana at the time of his2accident. Although Plaintiff came to work the next day, 3 he had trouble walking and was driven to the emergency room T Since by a Wal-Mart manager to receive treatment. Plaintiff was injured on the job, he was administered S a standard drug test at the hospital in accordance with Wal-Mart’s drug use policy for employees. Prior to his drug test, Plaintiff showed his registry card to the testing staff to indicate that he was a qualifying patient for medical marijuana under Michigan law. Plaintiff then underwent his drug test, wherein his urine was tested for drugs. One week later, Defendant notified Plaintiff that he tested positive for marijuana. Plaintiff immediately met with his shift manager to explain the positive drug test. Plaintiff showed the manager his registry card and also stated that he never smoked marijuana while at work or came to work under the influence of the drug. Plaintiff explained that the positive drug test resulted from his previous ingestion of marijuana within days of his injury in order to treat his medical condition. The shift manager made a photocopy of Plaintiff ’s registry card. The following week, Wal-Mart’s corporate office directed the store manager . . . to fire Plaintiff due to the failed drug test, which was in violation of the company’s drug use policy. Wal-Mart did not honor Plaintiff ’s medical marijuana card. Plaintiff sued Wal-Mart . . . for wrongful discharge and violation of the MMMA, arguing that the statute prevents a business from engaging in disciplinary action against a card holder who is a qualifying patient. * * * [T]he district court held that the MMMA does not protect Plaintiff ’s right to bring a wrongful termination action because the MMMA does not regulate private employment. Plaintiff now appeals. * * * According to the MMMA, A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act. . . . The parties’ dispute focuses on the use of the word “business” and whether the word simply modifies the words “licensing board or bureau,” or in the alternative, whether “business” should be read independently from “licensing board or bureau.” * * * The district court concluded that “the MMMA does not regulate private employment; [r]ather the Act provides a potential defense to criminal prosecution or other adverse action by the state.” Specifically, the court concluded that the “MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or 9781305850309, Employment Law for Human Resource Practice, Fifth Edition, Walsh - © Cengage Learning. All rights reserved. No distribution allowed without express authorization. 7 8 Part 1: Introduction to Employment Law that it otherwise limits the range of allowable private decisions by Michigan businesses.” * * * We agree with the district court and find that the MMMA does not impose restrictions on private employers, such as Wal-Mart. * * * Based on a plain reading of the statute, the term “business” is not a stand-alone term as Plaintiff alleges, but rather the word “business” describes or qualifies the type of “licensing board or bureau.” Read in context, and taking into consideration the natural placement of words and phrases in relation to one another, and the proximity of the words used to describe the kind of licensing board or bureau referred to by the statute, it is clear that the statute uses the word “business” to refer to a “business” licensing board or bureau, just as it refers to an “occuG pational” or “professional” licensing board or bureau. A The statute is simply asserting that a “qualifying patient” is not to be penalized or disciplined by a “busiT ness or occupational or professional licensing board or E bureau” for his medical use of marijuana. Plaintiff also argues that the plain language of the S statute somehow regulates private employment relationships, restricting the ability of a private employer,to discipline an employee for drug use where the employee’s use of marijuana is authorized by the state. We find, D however, that the statute never expressly refers to employment, nor does it require or imply the inclusion of E private employment in its discussion of occupational or professional licensing boards. The statutory language A of the MMMA does not support Plaintiff ’s interpretaN tion that the statute provides protection against disciplinary actions ...
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School: UCLA

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Running head: EMPLOYMENT LAW

Employment Law: Wrongful Termination
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1. Can the woman still sue for wrongful termination? Why or why not?
The woman can still sue for wrongful termination as this was more like a constructive
discharge. According to Walsh (2016), some of the factors that courts look out for to determine
whether or not an employee was constructively discharged are ‘reduction in job responsibilities’,
‘demotions’, and ‘reassignment to menial or deg...

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