Employment Law

1
Employment Law

• Hiring versus firing
• Fewer legal hurdles hiring than firing
• Mainly concerned with the anti-discrimination
  laws and regulations

2
Hiring

• Federal law and regulations
• State law and regulations
• Supremacy Clause of the U.S. Constitution
• State regulations can be more protective but not
  less protective normally states expand the
  protections afforded by the Federal rules

3
Federal Protections

• Can not discriminate in hiring, promotion and
  firing decisions on the basis of
• Race
• Color
• National origin
• Religious beliefs
• Gender
• Age
• Creed
• Disabilities

4
Montana Rules

• Provides the Federal protections plus
• Legal use of a legal product
• Marital status

5
Hiring decisions

• These factors normally cannot be used in hiring
  decisions unless they very directly and
  substantially involve a BFOQ
• BFOQ- Bona Fide Occupational Qualification

6
BFOQ

• Religious Institutions(e.g. church affiliated
  college)
• Bookkeeper versus counselor
• Authentic Mexican Restaurant
• Waitperson versus cook
• Which is a BFOQ?

7
Firing Decisions

• More regulations to deal with
• Have to deal with the anti-discrimination
  regulations just discussed PLUS state law dealing
  with termination
• Most states have abolished the pure
  interpretation of the At Will doctrine
• AT WILL- terminate any employee at any time for
  any reasoneroded to the point of no longer
  existing

8
Montana Law

• In 1987 Montana passed the wrongful Discharge in
  Employment Act
• The state law attempted to codify and limit the
  reach of a string of Montana Supreme Court
  Decisions

9
WDEA

• A termination is wrongful(Wrongful Discharge)
  where
• It violates a written personnel manual
• There is a lack of good or just cause
• There is a public policy violation

10
Personnel Manual

• Oral communications versus a written manual
• Failure to follow the companys written personnel
  manual constitutes a wrongful termination
• Keep written manual current, follow it
  consistently and communicate its content to all
  affected employees

11
Just Cause Termination

• Termination must be based on good cause
• Interpreted to mean a valid business reason
• Business slowdown, insubordination,
  tardiness,etc.
• Question of Fact left to a jury to decide

12
Public Policy Violation

• Worst kind of termination in terms of employer
  liability
• A firing that violates some public policy of the
  state is wrongful
• The question is what is Public Policy?
• Public policy is normally based on state
  statutes- e.g. anti-discrimination laws
  (religious surgical assistant case)

13
Damages

• Duty to mitigate damages(find another job)
• Personnel manual violations and lack of good
  cause cases limited to compensatory damages(no
  more than 4 years of lost future earnings)
• Circle K case
• Public policy violations could result in both
  compensatory and punitive damages
• (punitives only where malice can be proven)
• -Mildred F. case

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Damages
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