BUSINESS SERVICES - EMPLOYEE MANUALS

EMPLOYMENT CONTRACTS; NON-COMPETE COVENANTS & PROTECTING FROM WRONGFUL DISCHARGE CLAIMS

If My Employee Handbook and Personnel Policy Manual Are Essential to Operating My Business Can I Still Retain the Right To Excuse Someone From Employment Without Buying A Lawsuit?

Since 1891 the law in Pennsylvania has been that absent a statutory or contractual restriction, employment may be terminated by either party at any time, for any reason, or no reason at all.

This right of employers has been circumscribed by legislation prohibiting racial, gender and sexual discrimination; additional exceptions now recognize that employers may not, with a specific intent to harm a particular employee, create such a hostile environment that the employee has no choice but to resign, nor may employers fire a person required to perform certain public policy functions, such as for attending jury duty. Other recognized public policy exceptions are: discharge based on results or refusal to take a polygraph, for reporting federal law violations, for filing workers' compensation claims, for reporting motor vehicle violations, for refusal to violate antitrust laws, and for investigating corporate officer's self-dealing activities. Lastly, if by express contract or other written memoranda such as policy or employee manuals you have led an employee to believe he/she has a contract for employment, you may very well be prevented from discharging that person without a reason recognized as legitimate under the law.

Your manuals must be clear if you want to keep the right to fire someone for "cause" or for no reason at all. If your manuals are not clear, they may be construed as contracts of employment granting your employees rights to retain their employment and subjecting you to a lawsuit for terminating them improperly.

If you have not done so recently, have your employee manuals and personnel policy manuals reviewed, preferably on a yearly basis to keep pace with changes in the law. Unless you intend otherwise, your manuals should be written to be clear that they do not constitute an employment agreement. Unless you want these documents to act as contracts for employment, you must be sure they do not appear as such a contract.

Words such as "cause", "good cause", "sufficient cause", or "permanent employee" should not be used in defining the circumstances that would allow you to end an employee's position. Words describing the employment relationship must be carefully reviewed and determined to convey the proper meaning and to avoid establishing unwanted legal entanglements.

A prominently placed disclaimer at the beginning of the manual informing the employee that the manual does not constitute a contract of employment should be considered. Provisions the clearly reserve to the employer discretionary powers over employees and changes in the manual itself should also be provided.

During the hiring process, visible written disclaimers should accompany the actual application stating that employees are free to leave at any time and the employment relationship is not subject to any written documents except as agreed to by the employer expressly in writing. Have the employee sign and acknowledge this disclaimer. If you, as the owner, are not the interviewer, then your personnel that conduct the interview and hiring process should be counseled not to guarantee employment or benefits that are inconsistent with your policies. These directions to your personnel should likewise be in writing.

In disciplining an employee, you can expose yourself or your company to unnecessary litigation by failing to follow your own evaluation policies if the employee can show you had a specific intent to harm him/her. This specific intent can be proven by the employee in two ways: (1) where there was no reason for the action taken and the employee was harmed by it; and (2) where the action is taken against the employee with an ulterior motive. In considering whether there was a specific intent to harm the employee, the surrounding circumstances, i.e., the acts of the employer before, contemporaneous with, and shortly after the discharge will be considered. Thus, preventive practice is an important consideration in conducting a proper discharge.


		BUSINESS SERVICES - EMPLOYEE MANUALS EMPLOYMENT CONTRACTS; NON-COMPETE COVENANTS & PROTECTING FROM WRONGFUL DISCHARGE CLAIMS If My Employee Handbook and Personnel Policy Manual Are Essential to Operating My Business Can I Still Retain the Right To Excuse Someone From Employment Without Buying A Lawsuit? Since 1891 the law in Pennsylvania has been that absent a statutory or contractual restriction, employment may be terminated by either party at any time, for any reason, or no reason at all. This right of employers has been circumscribed by legislation prohibiting racial, gender and sexual discrimination; additional exceptions now recognize that employers may not, with a specific intent to harm a particular employee, create such a hostile environment that the employee has no choice but to resign, nor may employers fire a person required to perform certain public policy functions, such as for attending jury duty. Other recognized public policy exceptions are: discharge based on results or refusal to take a polygraph, for reporting federal law violations, for filing workers' compensation claims, for reporting motor vehicle violations, for refusal to violate antitrust laws, and for investigating corporate officer's self-dealing activities. Lastly, if by express contract or other written memoranda such as policy or employee manuals you have led an employee to believe he/she has a contract for employment, you may very well be prevented from discharging that person without a reason recognized as legitimate under the law. Your manuals must be clear if you want to keep the right to fire someone for "cause" or for no reason at all. If your manuals are not clear, they may be construed as contracts of employment granting your employees rights to retain their employment and subjecting you to a lawsuit for terminating them improperly. If you have not done so recently, have your employee manuals and personnel policy manuals reviewed, preferably on a yearly basis to keep pace with changes in the law. Unless you intend otherwise, your manuals should be written to be clear that they do not constitute an employment agreement. Unless you want these documents to act as contracts for employment, you must be sure they do not appear as such a contract. Words such as "cause", "good cause", "sufficient cause", or "permanent employee" should not be used in defining the circumstances that would allow you to end an employee's position. Words describing the employment relationship must be carefully reviewed and determined to convey the proper meaning and to avoid establishing unwanted legal entanglements. A prominently placed disclaimer at the beginning of the manual informing the employee that the manual does not constitute a contract of employment should be considered. Provisions the clearly reserve to the employer discretionary powers over employees and changes in the manual itself should also be provided. During the hiring process, visible written disclaimers should accompany the actual application stating that employees are free to leave at any time and the employment relationship is not subject to any written documents except as agreed to by the employer expressly in writing. Have the employee sign and acknowledge this disclaimer. If you, as the owner, are not the interviewer, then your personnel that conduct the interview and hiring process should be counseled not to guarantee employment or benefits that are inconsistent with your policies. These directions to your personnel should likewise be in writing. In disciplining an employee, you can expose yourself or your company to unnecessary litigation by failing to follow your own evaluation policies if the employee can show you had a specific intent to harm him/her. This specific intent can be proven by the employee in two ways: (1) where there was no reason for the action taken and the employee was harmed by it; and (2) where the action is taken against the employee with an ulterior motive. In considering whether there was a specific intent to harm the employee, the surrounding circumstances, i.e., the acts of the employer before, contemporaneous with, and shortly after the discharge will be considered. Thus, preventive practice is an important consideration in conducting a proper discharge.			FREE CASE EVALUATION Click here to contact us and get a free consultation! USEFUL BUSINESS INFO Employee Competition INC. or LLC? Shareholder Agmts. Employee Manuals

BUSINESS SERVICES - EMPLOYEE MANUALS

EMPLOYMENT CONTRACTS; NON-COMPETE COVENANTS & PROTECTING FROM WRONGFUL DISCHARGE CLAIMS If My Employee Handbook and Personnel Policy Manual Are Essential to Operating My Business Can I Still Retain the Right To Excuse Someone From Employment Without Buying A Lawsuit?

EMPLOYMENT CONTRACTS; NON-COMPETE COVENANTS & PROTECTING FROM WRONGFUL DISCHARGE CLAIMS

If My Employee Handbook and Personnel Policy Manual Are Essential to Operating My Business Can I Still Retain the Right To Excuse Someone From Employment Without Buying A Lawsuit?