Should we let employees contract away their rights against arbitrary discharge?

This article argues that the moral right to be discharged only for good cause and like rights can be contracted away by employees in appropriate circumstances. It maintains that the rights in question are not inalienable, and that there is nothing irrational about an employee's wishing to deal them away. It also maintains that inequalities in bargaining power between employers and employees are insufficiently pervasive to justify a flat ban on the alienation of these rights. For a waiver of such rights to be valid, however, employees must have full knowledge of its terms.The question addressed here bears on several legal and policy issues affecting termination of the employment relation. If employees can contract away their right to a goodcause discharge, the American doctrine of employment at willmight find justification in the face of that right. In addition, the alienability of such discharge rights may be necessary to justify express disclaimers of wrongful discharge liability and the waiver provision of the new U.S. Draft Uniform Employment-Termination Act.Michael J. Phillips is Professor of Business Law and Chairman of the Business Law Department of Indiana University's School of Business. He is a former editor-in-chief of theAmerican Business Law Journal, and has authored numerous law journal articles.     

Detours and frolics on the Internet: Employer liability and management control of cybertorts

Most employers are aware of their legal right to monitor employees' computer activities, and they are increasingly doing so. Yet, few of those who do monitor are aware that exercising this right may impose a legal duty to monitor prudently in order to protect third parties and to report criminal activity to the appropriate authorities. This paper briefly examines employers' legal right to monitor their employees' computer activities. Our subsequent analysis of the ruling in Doe v. XYC Corp. [Doe v XYC Corp., 382 N.J. Super. 122, 887 A.2d 1156 (2005)]. illustrates that those businesses that do assert their rights to monitor may assume a duty to report child pornography to the authorities, as well as a duty of reasonable care when reacting to their employees engaging in so-called cybertorts. We discuss how this ruling may extend the doctrines of ‘detours’ and ‘frolics’ into cyberspace. We also discuss the potential for employers' liability for other cybercrimes and cybertorts committed by their employees. We conclude by examining the contours of computer monitoring policies that effectively serve employers' risk management objectives without unduly invading employees' privacy, and the likely consequences of failing to achieve such a balance.     

Employee attitudes toward whistleblowing: Management and public policy implications

Managers of organizations should be aware of the attitudes of employees concerning whistleblowing. Employee views should affect how employers choose to respond to whistleblowers through the evolving law of wrongful discharge. This article reports on a survey of employee attitudes toward the legal protection of whistleblowers and presents an analysis of the results of that survey. Among the most significant findings of the survey are:

1. Recognition by employees of a hierarchy of proper whistleblowing outlets: internal first, law enforcement agencies second, and news media last.
2. Less employee support for legal protection for whistleblowers who report unethical activities than for those who report illegal conduct.
3. Very strong overall employee support for legal protection of whistleblowers, even among managerial and supervisory employees.
4. A belief among employees that a fear of being fired deters whistleblowing.

These findings have important implications for both management and public policy. Organizations that want to encourage whistleblowing clearly must protect whistleblowers from retaliation, while organizations that do not encourage whistleblowing may want to reconsider that policy. The survey results also have implications in the handling of individual whistleblowers. From a public policy perspective, the survey results provide support for increasing the legal protection of whistleblowers. On the other hand, any such increase in whistleblower protection should considerr the importance of employee loyalty and managerial discretion.     

Reasonable accommodation under the ADA: What's an employer to do?

As many observers expected when the Americans with Disabilities Act became law, employers have faced numerous court cases regarding the matter of appropriate accommodations for disabled workers under the law. The difficulty is that no consensus has emerged on the various interpretations of that law. Three particular areas of concern and disagreement have emerged, namely, how the accommodation request is made, how to handle reassignments, and whether to permit telecommuting as a substitute to working on premises. Several federal circuit courts have determined that the employer must respond to an employee's request in virtually any form, while others have stated that the employee must be specific in requesting an accommodation for disability. In two circuits, the employee must show some evidence of disability. The case law governing reassignment also varies by circuit, but in general a disabled employee who is being transferred would be given priority over prospective hires for the same position. The work of existing employees is not to be increased as a consequence of the ADA. Finally, telecommuting has thus far not found favor in most courts, but an employer who permits telecommuting for some employees will find it difficult to claim hardship for a worker who seeks to telecommute under the ADA's provisions. The courts have been most supportive of employers who have made a specific, fact-based determination regarding an employee's request for accommodation. By focusing directly on the situation at hand, an employer can document the particulars of an ADA request, regardless of whether the employee is satisfied by the employer's determination.     

Exemption under the Fair Labor Standards Act: The cost of misclassifying employees

The Fair Labor Standards Act of 1938 created two classes of employees—those who are paid for each hour of their labor and those who are given a salary due to the administrative, professional, or executive nature of their responsibilities. The FLSA created exemptions from the hourly wage laws for executive and administrative employees who are paid a salary. Therefore, employers must classify each employee correctly or risk substantial damage payments for lost overtime hours. The law contains a two-fold test for exempting positions from the law's overtime provisions. The first prong of the test is that the position pays a regular salary that essentially does not vary according to either the quality or quantity of work performed. The second prong involves the position's primary duties as being executive or administrative. (The article does not discuss the professional exemption.) The executive-duties test is that the position directs the equivalent of two or more full-time employees in managing a recognized department or subdivision of an enterprise. To meet the administrative test, the position's primary duty must involve the exercise of discretion or independent judgment relating to management policies or conduct of the business.     

Handle with care: Avoiding and managing retaliation claims

Anti-retaliation protections for whistleblowers are routinely included in federal statutes. During the past decade, claims of retaliation in employment-related cases have grown in numbers and in reach, due in part to a seemingly far-reaching commitment by the U.S. Supreme Court to interpret anti-retaliation provisions to provide maximum protection to complainants. Employers must take care not to run afoul of the anti-retaliation provisions; however, that does not mean that employees who complain of discrimination are ‘untouchable.’ This article provides an overview of anti-retaliation law as it relates to the employer–employee relationship and outlines eight practical tips for managing and avoiding retaliation claims. Though anti-retaliation provisions provide ample reason for employers to proceed with caution in the face of employee complaints, employers need not succumb to paralyzing litigation fear when addressing concerns regarding complaining employees’ performance issues.     

The Psychological Contract in Employment in Vietnam: Preliminary Empirical Evidence from an Economy in Transition

The psychological contract is defined as a set of mutual and promissory obligations perceived by employees and employers in their employment relationship. Although this concept had been extensively researched in the West, little empirical evidence in other contexts was available. This study operationalized the concept of psychological contract in Vietnam, an economy in transition. From a sample of 220 questionnaires of employees and their corresponding human resource managers, it found some distinct features of the psychological contract. Furthermore, this articles confirmed the congruence in the perceptions of employees and employers about contract obligations and fulfilments.     

Employer liability for telecommuting employees

Telecommuting is a work arrangement in which an employee regularly works at a site other than the employer's place of business—often the employee's home or a so-called telework center. Telecommuting may increase employees' job flexibility, retention, productivity, and motivation. However, telecommuting also carries distinct implications for legal liability. Among the issues are safety, adherence to disability-access laws, and wage and hour regulations. For instance, employers face issues connected with workplace safety, because they can be held accountable for accidents at a telecommuter's home office (even though the employer does not manage the premises). Telecommuting may come to be seen as a “reasonable accommodation” under the Americans with Disabilities Act, although few cases have been decided regarding this contention. Moreover, the simple fact that an employee is setting her own hours does not exempt the employer from the wage and hour provisions of the Fair Labor Standards Act. Workers must either fit that law's specific exemptions from hourly and overtime pay or else keep careful track of their hours. Perhaps the most important means of limiting problems arising from telecommuting is to implement a firm, company-wide policy (rather than apply ad hoc criteria), and to make certain that both job duties and the worker personally are suited to the minimal supervision and self-direction involved in telecommuting.     

Non-compete agreements: How fiduciary duty and covenants not to compete restrict managers’ mobility

Companies spend time and money training employees; in the case of a merger or acquisition, they spend resources such as cash, stock, and debt. It makes sense, then, that they do not want an employee to take the expertise the company underwrote to a competitor. Thus, employment contracts will often include non-compete clauses—sometimes known as covenants not to compete—which state that the employee cannot move to a competitor for a certain period of time. Though not all employees have the heightened fiduciary duty of board members and officers, they frequently have signed agreements that, at least on paper, restrict their employment mobility. Not only have officers and board members often signed such agreements as well, but they also have fiduciary duties further restricting their new employment plans. In decades of teaching courses in the legal environment of business as well as in business ethics, no topic flummoxes students more than this one. After all, in a free country, a person should be able to work where they wish, right? How can such restrictions be fair? Legally and ethically, this is a complicated area and one in which the old lawyer’s answer—it depends—is true. This article provides some parameters for employees and employers to know when fiduciary duty precludes certain employees from moving to a new company, including when those are legal in what ways they are fair.     

Employee References: Between the Legal Devil and the Ethical Deep Blue Sea

An employer asked to provide a reference for a former or departing employee is confronted with a number of complex legal and ethical concerns. The issue of references is always controversial, involving a balance of employers' fears of legal liability, interests in providing relevant information to prospective employers, and concerns for fairness to former employees. Recently this topic has been the focus of new attention as the result of a court decision holding a former employer legally liable for wrongs committed by a former employee in a new job. In that case, the former employer had provided a positive reference while neglecting to note certain negative aspects of the former employee'sperformance. This paper addresses legal and ethical aspects of the reference dilemma and incorporates responses of human resource professionals to the question of ethical reference policies and practices.     

Corporate loyalty,does it have a future?

A promotion of concepts of corporate family and employee participation as well as euphemisms which stress employee-employer long-term continuity makes the loss of loyalty flowing from downsizings and mass firings as well as corporate restructurings more difficult both for the employer and employee. The promotion of reciprocal obligations between employer and employee misleads both into a belief system which is to their mutual disadvantage.Corporate semanatics that soften employment realities and the implications of dislocation with positive rhetoric increases the sense of failure and guilt on the part of both employer and employee. Unrealistic expectations create hostility. If employment dislocation is seen as part of a continual economic evolution, not shrouded in semantic double-speak, loss of employment no longer becomes an outrageous afront to the dignity of those involved but rather a normal process of economic change and renewal. Brian A. Grosman, LL.B., LL.M., Q.C., is one of Canada's leading employment lawyers. He has taught law at McGill University and at the College of Law at the University of Saskatchewan and is the past founding Chairman of the Law Reform Commission of Saskatchewan. He is the author of numerous legal articles and six books. His last three books deal with employment relationships. His most recent book is entitled Corporate Loyalty: A Trust Betrayed and was published by Viking-Penguin Books Canada in 1988. Mr. Grosman practices law in Toronto where he advises corporate employers and executive employees on management and individual rights.     

Management and Legal Issues Regarding Electronic Surveillance of Employees in the Workplace

Since the attack on the World Trade Center in New York, and on the Pentagon in the United States, concerns over security issues have been at an all-time high in this country. Both state and federal governments continue to discuss legislation on these issues amid much controversy. One key concern of both employers and employees is the extent that employers, espousing a “need to know” mentality, continue to expand their capability and implementation of surveillance of employees in the workplace. With the technology typically growing faster than the speed of legislation, protective or permissive, the management and legal issues involved in electronic monitoring of employee communications in the workplace, are and well should be on the agenda for discussion of every management and legal team in American business today. Companies have a legitimate right to protect their trade secrets from disclosure by disgruntled employees. Similarly, companies also have a duty to protect their good names and reputations from unauthorized employee communications with outside parties, and even other employees, that may damage them. It is also a prime duty of management to ensure, in their direction of their workforces, that the employees execute their responsibilities by working full time on their stated objectives. In this regard, any management that fails to oversee its workforce to ensure that employees are not expending valuable company time, for which they are being compensated, on personal business, including unauthorized communications, is remiss in its responsibilities to its shareholders. The company may see a reduction of the price of its shares in the marketplace if it does not protect the economic interests of its shareholders.     

Sexual-harassment liability in 1998—goods news or bad news for employers and employees?

In June 1998 the U.S. Supreme Court issued three separate rulings regarding workplace sexual harassment. In an apparent victory for employers, the court ruled in one case that a victim must actually suffer a tangible loss (i.e., a demotion or unwelcome transfer) to establish a case for quid pro quo harassment. The court affirmed, moreover, that employers can absolve themselves of liability in hostile-environment cases by establishing a meaningful and effective policy against sexual harassment. Absent a meaningful policy, however, employers will be liable for a hostile environment created by supervisors. Thus, in another case, the court found an employer liable for workplace harassment because the employer failed to disseminate its existing policy and to follow its terms. Finally, in a same-sex harassment case, the court rejected the notion that egregious sexual harassment is per se unlawful, leaving open the possibility that a harasser who treats men and women equally, no matter how badly, could be found not guilty of unlawful behavior. Still, the court made it clear that an employer's best defense against supervisors' sexual-harassment behavior is an effective prevention policy. Consequently, employers should draft a policy that (1) defines sexual harassment; (2) states the company prohibits such conduct; (3) provides a clear procedure for submitting claims, including the names of individuals involved in the resolution process; (4) states that those who complain or cooperate with an investigation will not be retaliated against; and (5) is disseminated to all new employees when they join the company, reissued to all employees each year, and posted in a conspicuous location in the workplace.     

完善我国开放大学章程的思考--以加拿大皇家大学章程探析为例

大学章程是内部治理的总纲领，也是调整大学关系的基本法律依据。加拿大皇家大学章程在法律框架、大学宗旨、法律地位、治理结构方面极具特点。通过分析加拿大皇家大学章程文本内容，对完善我国开放大学章程建设有以下启示：一是开放大学章程应包涵开放性、公平性、高质量、服务性的理念与学历、非学历教育以及终身教育的宗旨；二是开放大学章程明确规定大学主体法律地位；三是开放大学章程是调整开放大学内部治理结构的法律依据。     

The effect of the USA Patriot Act on workplace privacy

Legal protections for employees against surveillance exist, but so, too, do lawful provisions for employers and government agencies to monitor employees' workplace activities—especially in the aftermath of 9/11 and passage of the USA Patriot Act.     

Minimum and preferred entry qualifications and training provision for British workers

This article reports the outcomes of a survey of British employers that requested information on the qualifications sought when recruiting employees, and on training and development offered subsequently to employees. Responses revealed that few employers actively sought vocational awards in potential employees. The only occupational category for which more employers specified a vocational award than an academic award was service workers. A substantial number of organisations specified no minimum entry level of qualification, even for higher–status occupations. Those organisations that did specify a minimum qualification level for recruits were significantly more likely to report that they trained their employees.     

Patterns in international bribery: Violations of the foreign corrupt practices act

An examination of U.S. Department of Justice prosecution of violations of the Foreign Corrupt Practices Act shows that officials in less developed countries are the likely recipients of bribes; that bribery occurs more often in the capital‐intensive industries of energy, construction, telecommunications, and military equipment; that firms more often tend to use intermediaries and agents to consummate illicit transactions rather than directly paying the intended beneficiary; and that the overall motivation for bribing is to secure a particular contract. This article reviews the evolving enforcement of the law and recommends a set of managerial actions to reduce corporate liability and improve governance practices. © 2012 Wiley Periodicals, Inc.     

Marketing financial services to all levels of affluence

This study examines efforts being made by commercial banks to satisfy their obligations under the Community Reinvestment Act while at the same time responding to changes in their economic and competitive environments. Banks are being directly and indirectly mandated by outside forces to find ways to serve all segments of their markets. What one could consider the banks' choices or prerogatives, such as served markets, selection and pursuit of desired market niches, differentiation strategies, and positioning alternatives, are all being affected by outside regulatory forces. In an effort to identify the marketing-related factors that differentiate the two groups, this study compares the policies and characteristics of those institutions that are satisfying their regulatory obligations to those institutions that are not satisfying their obligations. © 1995 John Wiley & Sons, Inc.     

The family and medical leave act: What hospitality managers need to know

The complexities of the federal Family and Medical Leave Act can pose administrative headaches and legal liability for managers unaware of its provisions. Worse, managers have no legal precedents to guide their FMLA decisions.     

"区域"制度下担保国的义务与责任研究

本文分析区域制度下,担保国对于其所承保的在"区域"内的活动所应履行的义务,承担的责任.从而对担保国在"区域"开发中的角色有一个更好的了解.