Importance Of Employment Contracts – Know Their Value |

Anyone who works for an employer for a regular wage or salary automatically has a contract of employment, regardless of whether it is written or not. The majority of employees work under open-ended contracts of employment. In other words, the contract continues until such time as the employer or employee ends it.Many other employees however, work under fixed-term or specified-purpose contracts which are contracts which end on a specified date or when a specific task is completed. The contract of employment will include some or all of the following elements (regardless of whether the employer and employee have specified them or not):The terms that the courts say are in every contract of employment. Examples include the duty of every employer to provide a safe workplace and the duty of every employee to carry out the job to the best of his/her ability. This part of the contract is occasionally referred to as “common law”.Terms that must be part of the contract as a result of laws passed. Examples include the right to take maternity leave. Such terms are part of the contract of employment even if the employer and employee do not specifically include them and replace any agreement between the employer and employee not to apply the particular law. So, the statutory right to take maternity leave overrides any agreement between the employer and employee that the employee will not take maternity leave.Terms and conditions states must be in every contract, for example, the right of an employee to join a trade union.Collective agreementsJoint Labor Committee RegulationsIn addition, custom and practice in a particular workplace may form part of a contract. An example would be a particular level of overtime pay for employees.In the case of these items instead of giving each employee the details in writing, the employer may refer an employee to other documents, for example, a pension scheme booklet or a collective agreement, provided that the employee has easy access to such documents.The statement of terms must indicate the reference period being used by the employer for the purposes of the calculation of the employee’s entitlements under the Minimum Wage Act, 2000. (Under that Act the employer may calculate the employee’s minimum wage entitlement over a reference period that is no less than one week and no greater than one month).The statement of terms must also inform the employee that he/she has the right to ask the employer for a written statement of his/her average hourly rate of pay for any reference period (except the current reference period) in the 12 months prior to the date of the employee’s request.Note. Specific provisions in contract of employment
In recent times, some employers are adding in specific provisions in contract of employment that limit the ability of employees to work in a certain sector, with certain suppliers, clients, for a period following termination of employment. (For example, it may specifically state that the employee cannot work in a certain sector, with or for suppliers or clients of the former employer, etc.). There is nothing in employment law in that strictly forbids this, but there is no provision in employment law that allows this either.Essentially, this is an issue of contract law – that is, the contract of employment signed and agreed between the employer and employee. If you have any concerns about this issue, you are strongly advised to seek legal advice from a competent legal professional in advance of signing this contract of employment. However, even if the contract of employment is signed, you are always free to seek such legal advice. Attorney fees can vary widely so shop around and obtain some quotes for legal advice before you proceed.Note. Probationary period
The contract can include a probationary period and can allow for this period to be extended. The Unfair Dismissals Acts will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:* the contract of employment is in writing
* the duration of probation or training is one year or less and is specified in the contract.The above exclusion from the Acts will not apply if the dismissal results from trade union membership or activity, pregnancy related matters, or entitlements under the maternity protection, parental leave, adoptive leave and career’s leave legislation.Changes to your contract of employment.Changes to your contract of employment can occur due to a change in the law, but otherwise, changes must be agreed between your employer and yourself. The requirement for both the employer’s and the employee’s consent to changes in the terms of the contract is part of contract law.From the above information you will see that the contract of employment is a very important document to have. Whenever you get hired, ensure that your new employer offers you this kind of security. Be cautious of employers who don’t give contract of employment.

Effective Pre-Employment Background Screening |

In today’s competitive economic environment, firms cannot afford to be side-tracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers have increasingly turned to pre-employment screening as a critical risk-management tool to try to avid hiring problem employees in the first place.At the same time, companies are becoming more cost conscious as well. Despite the obvious benefits of pre-employment screening, management often expects security and human resources professionals to produce more results with fewer resources. The challenge facing security and human resources professionals is finding ways to implement an effective pre-employment screening program that is also cost-effective.Such a program has four goals:- First, the program must demonstrate that an employer utilizes due diligence in hiring. That means that an employer takes reasonable steps to determine a job applicant is fit for the job. This can protect an employer from claims of “negligent hiring.”- Second, effective screening obtains factual information about a candidate, to supplement the impressions obtained from an interview alone. It is also a valuable tool for judging the accuracy of a candidate’s resume.- Third, effective pre-employment serves to discourage applicants with something to hide. An applicant with serious criminal convictions is less likely to apply at a firm that announces it does pre-employment background checks.- Finally, a background-screening program should encourage applicants to be very honest in their applications and interviews. Since applicants are told there is a background check, they have a motivation to reveal information about themselves they feel may be uncovered with a check.Many firms view pre-employment screening as a process that starts after an applicant has been selected by a hiring manager or department, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. In a typical screening program the emphasis is on checking for criminal records, as well as other background searches that are commonly available.An effective background-screening program, however, is much more then just checking criminal records after a candidate has been selected. In fact, an effective background screening program starts even before the first resume is received or the first interview is conducted. It requires a company-wide commitment to a safe hiring by everyone involved with hiring. Recruiters, hiring mangers and interviewers must understand safe hiring practices are not something someone else takes care of after they make a hiring decision. It is part of their responsibilities as well.The following steps can increase the effectiveness of a screening program. However, they all take place before a hiring decision is made and before a background report is requested. They also take relatively little time and money compared to the benefits a firm receives.These nine steps rely upon two vital factors. First, they utilize multiple and overlapping tools that approach the task from different directions. There is no one screening tool that all by itself guarantees an effective screening program. Second, they require the department in charge of background screening to recruit and educate everyone in the hiring process to become involved in safe hiring, starting with the person who places ads in the newspaper.These nine steps are:1. Job announcements, such as newspaper ads, should clearly indicate the firm requires background checks. This discourages an applicant with something to hide by clearly stating in the public announcement for a job opening that the company does screening. Employers find good applicants are not discouraged from applying at companies that do background screening. Employees are just as anxious as employers to work in a safe environment with qualified and honest people.2. All applicants must sign consent for a background check, including a specific consent for criminal records at the time they submit an application or resume. This serves two vital functions in the screening process. First, it makes it very clear to a job applicant that criminal records will be searched. An applicant with a criminal record they want to hide may apply instead with a firm that does not perform screening. Second, some individuals may voluntarily disclose a prior difficulty. For some positions, a minor criminal violation honestly disclosed may not necessarily eliminate a person from consideration if the criminal offense is not related to the job.There are some companies that do not use application forms, but instead hire based upon resumes. In that situation, a company can prepare a supplemental release form for the applicant to complete and sign. Some firms include a supplemental sheet in their applications asking a candidate specifically if they have any concerns about a background screening and whether there is anything they wish to bring to the company’s attention. This is an excellent device to focus applicants on the fact a thorough investigation will be conducted as part of the hiring process.3. Include language in the consent concerning a release of records from foreign countries. Doing pre-employment screenings and criminal record checks in foreign countries can be difficult and expensive, and in many instances are not even possible. One approach, however, is to add specific language to a background form indicating the release to search for criminal records also applies to any jurisdictions outside the United States. That may cause applicants from abroad to either self-disclose problems or apply elsewhere.4. Applicants should be asked directly if they have a criminal record in the interview and employment application. It is crucial that applicants be asked directly during the process if they have a criminal conviction or pending case. Ideally, that language should be in the employment application. During oral interviews, part of the standard questioning should be, “If we were to check with the courts, would we discover any criminal convictions or pending cases?”In asking about criminal records, employers should keep the following in mind:a. Always ask the broadest question allowed by the law in your state. Some employers are under the mistaken belief they can only ask about felonies. However, misdemeanor convictions can also represent serious crimes, and should be included as allowed by state law.b. Employers should carefully phrase the question in order to not elicit any information about arrests not resulting in convictions. Employers are generally limited to convictions or pending cases.c. Ask the applicant to describe any convictions or pending cases and give the specific location. This allows the employer to pull the court file and to determine if the applicant is truthful about the nature of the criminal case. It is also critical to ask for the exact location so the employer or background checking company knows exactly what court to search.d. In any written application or release asking about criminal convictions or pending cases, the form also should contain the language to ensure compliance with discrimination laws. For example, “This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company, however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.5. The employment application must clearly state that any false or misleading statements or material omissions is grounds to terminate the application process, or to terminate employment if it has begun, regardless of when the information is discovered. This is another critical part of an effective program. Employers generally cannot deny employment automatically because of a criminal conviction without taking certain factors into consideration. However, where a person has lied on their application by not admitting a prior criminal conviction in a response to a direct question, the lack of honesty is a valid reason for a rejection. An applicant needs to clearly understand dishonesty can lead to termination no matter when it is discovered.6. If the background screening may not be completed before the start date for the position, make sure the applicant understands any employment is conditioned upon the employer’s receipt of a background report that is satisfactory to the employer. Sometimes employment will begin prior to the background report being completed. In those situations, it is important to notify the applicant, preferably in writing, that employment is subject to the employer’s receipt of a background report. It is also important the employer clearly state the background report is subject to the employer’s satisfaction only, so a job applicant cannot debate whether a report is satisfactory or not.7. Check past employment references. Checking references is an essential part of the screening process. In fact, it can be just as valuable as a criminal records search. It would be difficult, if not impossible, to defend an employer sued for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date and job title, that information is still invaluable. The primary purpose of such a search is to confirm an applicant’s whereabouts for the past five to seven years and to make certain there are no unexplained gaps in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.It also assists an employer in determining what jurisdictions to search for criminal records. This is important because there is no such thing as a national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look.Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.8. Obtain a listing of all past addresses. Another important step is to include on the consent form a listing of all addresses for the past seven years, as well as the approximate time at each address. This not only reinforces in the applicant’s mind that the company is serious about screening, but it assists the employer in determining which jurisdictions to search for criminal records.9. Include future screenings in the consent language. Every consent form should include language that the consent for a background screening allows for future background checks for purposes of promotion, reassignment or retention, unless otherwise revoked in writing. This serves three important purposes. First, it reinforces the idea the employer is serious about maintaining a safe workplace. An employee is on notice that they are subject to future investigations. Second, this language facilitates future investigations if necessary for claims of harassment, theft, violence or other difficulties. Finally, the language is also important due to recent interpretations of the federal Fair Credit Reporting Act, the federal law that governs pre-employment screening by outside agencies. This language in the release form makes it easier for an employer to utilize the services of an outside agency to conduct future investigations if workplace issues arise.In addition to these nine steps, an employer also must perform additional checks to satisfy due diligence. The most important of these are courthouse searches for criminal records. There are other checks that can be performed as well. However, these preliminary steps that occur before a person is even hired can dramatically increase the effectiveness of a screening program. These steps also have the advantage of promoting workplace safety with very little additional costs. By enlisting everyone in the hiring process from the beginning, firms can dramatically increase the effectiveness of their screening programs.

Large Employers and Cost Effective Safe Hiring Practices |

American industries that hire large numbers of hourly, temporary or seasonal employees are caught in a Catch-22.On one hand, they know that if they don’t take measures to conduct pre-employment screening and exercise due diligence in hiring, it is a statistical certainly they are sitting ducks for expensive litigation, workplace violence, false claims, theft, embezzlement and economic loss.Just one bad hire can cost a firm literally millions. Studies show that screening reveals criminal records for up to 10% of job applicants, and at least one-third of all resumes contain materials falsehoods. For food establishments, manufactures, hotels and other business that have a national brand, one negative employee caused event can result in damaging national publicity and significant harm to the brand.The catch, however, is that large hourly employers face enormous financial and logistical challenges in implementing safe hiring programs. Screening large numbers can be expensive and time consuming. Some industries hire at multiple locations, and can experience large turnover.The problem is compounded when firms hire seasonal, temporary or contract workers as well. Such industries can include hospitality, manufacturing, service, retail, food and restaurants, and tourism. The challenge is how industries with a large numbers of hourly, seasonal, temporary or contract workers or significant turnover, can protect themselves in a cost-effective and efficient manner.The answer is probably less complicated then it first appears-due diligence and safe hiring does not require a large budget when employers implement a safe hiring system, as opposed to buying background checks.Many firms make the mistake of believing that in order to show due diligence, they need to spend a great deal of money to perform background checks and criminal record research. These firms view pre-employment screening as a process that starts after a hiring manager has selected an applicant, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security.An effective background-screening program, however, does not need to cost a great deal of money because it is much more then just checking background and criminal records after a candidate has been selected. In fact, in an effective safe hiring system, the primary tools are the application, interview and reference checking process, also known as the AIR process. These processes are performed in-house as part of the routine hiring program, and do not cost employers a dime, as long as it is followed. A brief review of the AIR process is contained in the attached Safe Hiring Checklist.AIR PROCESS1. Use an application form, not just resumes.Use of an employment application form is considered a best practice. Resumes are not always complete or clear. Applications ensure both uniformity and that all needed information is obtained, prevents employers from having impermissible information, and provides employers with a place for applicants to sign certain necessary statements.2. Make sure the application form contains all necessary language.a. Use the broadest possible language for felony and misdemeanor convictions and pending cases. One of the biggest mistakes employers make is to only ask about felonies on an application form since misdemeanors can be very serious. Employers should inquire about misdemeanors to the extent allowed in their state.b. Statement that criminal records do not automatically disqualify an applicant. This is important for EEOC compliance. It is critical for employers to understand that the background screening is conducted to determine whether a person is fit for a particular job. Society has a vested interest in giving ex-offenders a chance. However, an employer is under a due diligence obligation to make efforts to determine if a person is reasonable fit for a particular position. For example, a person just out of custody for a violent crime would not be a good candidate for a job that require them to go into people’s home, but may perform very well on a supervised work crew. If a criminal record is found, an employer must determine if there is a business reason not to hire the person, based upon the nature and gravity of the offense, the nature of the job and when the crime occurred. There are also limitations to the use of arrests not resulting in a conviction, and a number of states also have rules about criminal records.c. Statements that lack of truthfulness or material omissions are grounds to terminate the hiring process or employment no matter when they are discovered. This is particularly important if a criminal record is found. Although a criminal record may not be used automatically to disqualify an applicant, the fact an applicant has lied about a criminal matter can be the basis for an adverse decision.3. Require a release for a background check in the application process.Have each job applicant sign a consent form for a background check, including a check for criminal records, past employment and education. Announcing that your firm checks backgrounds may discourage applicants with something to hide, and encourage applicants to be truthful and honest about mistakes they have made in the past. If a firm outsources to a third party vendor, then under the federal Fair Credit Reporting Act (FCRA), there must be a disclosure on a separate standalone document.4. Review the application carefully.In most instances, when there is an employee problem or lawsuit, a careful review of the application would have alerted the employer in advance that they were hiring a lawsuit waiting to happen, Look for the following red flags:Applicant does not sign application.Applicant does not sign consent or background screening.Applicant leaves criminal questions blank (the honest criminal syndrome-dopes not want to lie about a criminal past).Applicant self-reports a criminal violation (Applicants can self report matters incorrectly.)Applicant fails to explain why he or she left past jobs,Applicant fails to explain gaps in employment history.Applicant gives an explanation for an employment gap or the reason leaving previous job that does not make sense.Excessive cross-outs and changes (as though making it up as they go along)Applicant fails to give complete information (i.e. insufficient information to identify a past employer, leaves out salary, etc).Applicant failed to indicate or cannot recall the name of a former supervisor.5. In reviewing applications, look for unexplained employment gaps.It is critical to verify past employment to determine where a person has been for the last 5-10 years, even if you only get dates and job titles. Look for unexplained gaps in employment. Generally, if you can verify that a person was gainfully employed for the last five to ten years, or their whereabouts can be verified it is less likely the person spent time in custody for a serious offense, although this does not eliminate the possibility of lesser offenses.6. In reviewing applications, examine reasons for leaving each job.7. Always ask these five questions (during housekeeping stage of interview).Since they have signed consent and believe you are doing checks, applicants have a powerful incentive to be truthful. These questions are the equivalent of a New Age Lie detector test. Good applicants will shrug it off and applicants with something to hide may reveal vital information.a. We do background checks on everyone we make an offer to. Do you any concerns about that you would like to discuss? (Good applicants will shrug off)b. We also check for criminal convictions for all finalists. Any concerns about that? (Make sure the wording of the question reflects what an employer may legally ask in that state)c. We contact all past employers. What do think they will say?d. Will past employer tell us that e.g. your were tardy, did not perform well etc.e. ALSO, use interview to ask questions about any unexplained employment gap8. Check references and look for Unexplained Employment Gaps:Verifying past employment is one of the single most important tools for an employer. It can be as important as doing criminal checks. Past job performance can also be an important predictor of future success. Some employers make a costly mistake by not checking past employment because they believe past employers may not give detailed information. However, even verification of dates of employment and job titles are critical because an employer must be concerned about unexplained gaps in the employment history.In addition, documenting the fact that an effort was made will demonstrate due diligence. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.After the AIR process, a firm is well advised to perform a criminal check. The good news is that with an effective AIR process, the possibility of locating a serious criminal record is greatly reduced. A firm can dramatically lower their cost by concentrating on the most recent counties where an applicant resides or spent a long period of time. Some experts contend that statistically, a person is more likely to commit a criminal offense in their county of residence. As a result, a check of the county of current residence gives an employer the most return for the expenditure.An employer may wish to do a more in-depth search depending upon the type of position. An employer may want to review those positions with a greater risk for increased scrutiny, such as:a. Supervisorsb. Workers handling cash or Personal Identifyable information (PII).c. Remote or unsupervised workersd. Workers that go into people’s homese. Workers with Access to assetsf. Vendorsg. Temporary workersh. ContractorsEmployers who hire vendors, temporary employees or contractors can insist that the provider of these services do screening. Many firms may have janitorial crews in the faculties at night, or vendors supplying vital parts or services. Employers are within their rights to insist that third party provider certify that they have performed checks as well.Implementing a Program throughout the companyThe biggest challenge for an organization is to promote safe hiring and due diligence across an organization. The goal is to ensure that hiring managers across different divisions and sometimes across different physical locations follow procedures and pay attention to safe hiring.The answer is to set up a S.A.F.E. Hiring System. It stands for:S-Set-up a program, policies and procedures to be used throughout the organization, including the AIR processA-Acclimate/train all persons with safe hiring responsibilities, especially hiring
managers.F- Facilitate/Implement the program.E-Evaluate and audit the program by making sure that everyone responsible understands that their compensation and advancement is judged in part by the attention they pay to the hiring process. Organizations typically accomplish those things that are measured, audited and rewarded. The attached chart will help supervisors implement the program and for management to audit hiring practices.By following the AIR process as part of an overall S.A.F.E. Hiring System, employers can demonstrate due diligence in the hiring process and protect themselves from bad hires in a cost-effective manner

Employed Or Self-Employed – Getting to Grips With Employee Status |

UK employment laws are extremely complex and with the government introducing regular changes, many UK employers often struggle to keep up to date and keep their business compliant.The thought of complying with these complex UK employment laws often leaves business owners concerned and unsure about employing staff directly and so many choose instead to use self employed workers, thinking this means they won’t need to worry about typical employment related matters… but it’s not that simple!An increase of atypical contracts has effectively blurred the lines between self-employed and employed status and so employers should be very careful when entering into any sort of working relationships.Increasingly, disputes over the definition of working relationships between individuals and Employers are being referred to Employment Tribunals where preliminary hearings are being used to determine the legal definition and, in many cases, businesses who thought they were contracting self-employed individuals have found they are actually employing them and so immediately find themselves subject to the full range of UK employment law.So how can employers work out whether the working relationships they have with individuals are that of employer/employee or employer/self-employed?Over the years, various different tests have been used to determine the nature of working relationships between individuals and Employers including the ‘Control Test’, the ‘Integration Test’ and the ‘Economic Reality Test’ but these days, preliminary hearings held by Employment Tribunals use the ‘Multiple Factor Test’.The ‘Multiple Factor Test’ looks at a number of different factors opposed to just one or two. The factors normally taken into consideration include but are not limited to the following:

Does the worker receive a regular wage or a one off payment or fee?
Can the employer dictate the place of work and the way it is to be carried out, in other words what is the employers degree of control in the relationship?
Does the employer have the right of exclusive service?
Does the employer have the right discipline and the power to dismiss the worker?
Who owns the tools or other means of production?
To what extent is the employer obliged to provide work for the worker to perform and to what extent is the worker obliged to accept such offers of work? Commonly known as ‘mutual obligations’.
Recent case law suggests that the minimum criteria to establish a contract of employment is mutuality of obligations and control but this is no guarantee that the presence of these two criteria means there is definitely an employer/employee relationship. However, if either of these is missing then there won’t be an employee/employer relationship.It is critical that employers correctly determine the nature of the working relationship they have with their workers and then review their contracts to ensure they are compliant with current legislation and are what they actually were intended to be.Given the complexity of UK employment law, and the potential impact and cost that getting it wrong could have, employers should speak to qualified experts to prevent problems and protect their business.

At Will Employment and How to File a Wrongful Termination Lawsuit |

Most employees are hired according to what is called an “at-will” basis. This means that the employer may terminate the employment for nearly any reason so long as it is not illegal. Conversely, this also means that the employee may quit their job at their own discretion for any legitimate reason.At will employment provides both the employer and the employee a great deal of freedom and mobility to adapt to the ever-changing job market. The majority of states assume that employment is on an at-will basis if a valid employment contract does not exist between employer and employee.Given the very few restrictions involved in an at-will employment arrangement, it may seem difficult for a wrongful termination to occur. So, under what circumstances is it unlawful for a person to terminate an at will employment?There are several reasons that termination of at will employment may constitute wrongful termination, which will be discussed below. They mainly deal with termination by the employer, although employees may also be held liable as well.Wrongful Terminations Based on Violations of LawAt will employment is subject to various federal and state laws which make termination illegal under certain circumstances. The following are some situations where terminations of an at will employee are wrongful because they constitute a violation of law:Discrimination by the Employer: According to various anti-discrimination statutes, employers cannot terminate an at-will employee on the basis of their membership in certain designated categories. These categories include race, age, nation of origin, sex, religion, and in some states, sexual orientation. This is probably the most common basis for a wrongful termination suit.
“Retaliatory Discharge”: Retaliatory discharge is when the employer has terminated employment in response to an employee’s actions. Employers are prohibited from firing employees who have reported instances of the employer’s misconduct internally or to a reporting agency. Most of these types of wrongful terminations deal with employees who have reported instances of sexual harassment. The purpose of anti-retaliation statutes (also known as “whistleblower” statutes) is to ensure that employees can report misconduct without fear of losing their job.
Illegal Acts: Superiors may not order subordinates to engage in or participate in activities that amount to an illegal act. Accordingly, employers may not terminate an at will employee who has refuses to agree to an illegal act.
Breach of a Contractual Obligation: While at-will employment usually implies that there is no employment contract involved, sometimes employees wish to state certain employment terms in a written contract. Terminations that violate the terms of a contract may be considered wrongful. This applies when either the employer or the employee violates the contract in terminating the employment.
Taking leave for family or medical reasons: The Family and Medical Leave Act provides guidelines for employees who wish to take leave for family or medical reasons. Employers cannot fire an employee for taking a leave which is in accordance with the Act.
Violations of a company’s own termination procedures: Some employers specifically provide for their own termination procedures in their employee handbook. A wrongful termination lawsuit may prevail in some instances where employers have failed to follow their own regulations and guidelines set forth in their handbook.These are the most common situations dealing with at-will terminations that violate the law. They have a good chance of success in a court of law because they are backed by major Federal laws passed by the legislature to ensure fair and just employment practices.Wrongful Terminations based on Public Policy ViolationsIn addition to violations of the law, termination of at will employment may be wrongful if it is contrary to public policy. Public policy refers to the body of principles that reflect the collective moral and ethical stance of a community.An example of a public policy is when the government grants tax credits for people who donate to a non-profit organization. The public policy which motivates the tax credit is that people should be encouraged to contribute to humanitarian organizations.Public policy is not law in itself, and courts are not required to base their decisions on public policy, but they can weigh heavily in wrongful termination suits. Here are some examples of wrongful terminations and corresponding public policy justifications:Firing an employee who has merely exercised a constitutional right (such as the right to free speech)
Public policy justification: people are discouraged from interfering with constitutionally protected rights
Firing an employee who reported an employer violation
Public policy justification: employees should be encouraged to report instances of employer misconduct
Firing an employee who has fulfilled a civic duty such as a jury summons
Public policy justification: civic duties are important and can sometimes even take priority over employment responsibilitiesMost judges would prefer to base their decisions on statutes or case law rather than public policy. This is because public policy is not law, and it often varies from region to region within the U.S. However, some states do permit recovery for terminations based on public policy violations.Wrongful Termination based on Breach of an Implied CovenantAnother reason that termination of at will employment may be considered wrongful is if it constitutes a breach of an implied covenant. An implied covenant is an agreement that is not necessarily stated but rather is assumed as a condition to the employment.An example of this is an implied covenant of good faith. This implied covenant assumes that the employer and employee will act in good faith (i.e., use their best efforts) in providing their services to one another. Another is the implied covenant of fair dealings, that is, that the parties will act in a manner that is fair and will not put the other at a disadvantage.An employer who has fired their employee because they wish to withhold benefits such as end of the year bonuses or sales commissions would be in violation of the implied covenant of good faith. Employers are expected to make good on the promises they make in hiring a person, and failure to act in good faith during a termination would be considered wrongful. Employees can also violate the good faith covenant, for example, by not providing enough notice before resigning.Obtaining Relief for a Wrongful Termination of At-will EmploymentAt will employees who have been wrongfully terminated are entitled to various remedies under law. These may include: reinstatement to their former position, recovery of lost wages, entitlement to back pay, and establishment of further measures for preventing future violations.In most cases, a wrongful termination lawsuit cannot be filed unless the victim first files a claim with a Federal and/or state regulatory agency such as the Equal Employment Opportunity Commission (EEOC). After filing with the EEOC, the agency will conduct an investigation and order that the proper remedy be applied, such as recovering back pay. Only after the EEOC is unable to determine a proper remedy may a legal claim be filed in a court of law.Conclusion: Some Points to ConsiderAt will employment is the norm in the majority of all states. Since there is usually no contract involved, termination must follow procedures dictated by employment laws. In the event that you suspect a wrongful termination claim, an attorney who is well-versed in wrongful termination laws can help you greatly. You may even wish to hire a lawyer at the EEOC reporting stage to help you file your claim. Here are some points to go over with an attorney:Termination of at will employment may be wrongful on the basis of a violation of law, a violation of public policy, or a breach of an implied covenant
If you are an employer, be sure that you are following your company’s own termination procedures when firing an employee
Double check with your lawyer to see what types of relief can be granted under laws and with the EEOC

Employment Law – Important Developments in a Changing Economy |

In the current economic climate, continued employment and employment relationships are more critical than ever. Loyal and productive employees will provide an employer its best chance to emerge unscathed at the end of this lengthy recession. During these uncertain times, economic pressures may require an employer reorganize or restructure its workforce. Doing so properly, and in accordance with the law, will ensure continued survival of your business, your profitability and your reputation.The laws regarding employment standards have changed little in recent years. Still, you must know them when considering leave, layoffs and terminations.What’s Old?The Employment Standards Act is the corner-stone of most Canadian employment relationships, although in recent years, the common law is being applied much more often in the determination of reasonable notice for termination.The purposes of the Act are to ensure basic compensation and conditions for employees and to ensure fair treatment. The Act applies to all employees other than those excluded by regulation (such as certain professionals, enumerated jobs and where collective agreements speak to certain rights). The minimum requirements of the Act cannot be waived (except regarding hours of work and overtime for managers and certain employees).Amongst many other rights and protections, the Act provides for overtime pay, statutory holiday, vacation leave and various other leaves of absence from employment and for penalties for breaches of these and other rights.Most importantly, and subject to exceptions set out in the law, the Act provides at sections 63 and 64 for the liabilities of employers to provide notice or pay in lieu of notice. After three months of employment, an employee who is terminated is owed one weeks’ wages on termination. After 12 months of service the entitlement rises to two weeks wages. Finally, after three years of service to three weeks’ wages and an additional weeks pay for each year of service thereafter to a maximum of eight weeks’ wages on termination. In addition, where more than 50 employees are to be terminated in any two month period, certain modified rights to special notice arise and rise further if more than 100 employees are to be affected and further still if more than 300 employees are impacted.The Director appointed under the Employment Standards Act, and the Employment Standards Tribunal are charged with enforcement and remedies under the Act. The Director has full investigatory and prosecutorial powers to ensure compliance and to enforce stiff penalties.However, there are limits to their powers which are important to know in order to protect your company from wrongful intrusion by Provincial officers.Employers may also be liable for wrongful dismissal and/or constructive dismissal at common
law as will be discussed below. The liability at common law for wrongful dismissal can be up to three times higher the awards statutorily mandated under the Act. Doing things right matters.Employment contracts remain the key way to record and protect the all-important employment relationship. Properly drafted, they protect both parties, ensure compliance with the relevant laws and ensure peace in the workplace. This is especially the case for employees such as managers and professionals to which the Act does not apply; a properly drafted contract and policies are the only way that the parties can record their rights and relationship.What’s New?In addition to the Act and proper contracts as discussed above, the Supreme Court of Canada has been busy hearing employment law cases in 2008 and in 2009. The Supreme Court has delivered several recent judgments of relevance to employment law generally and concerning procedural fairness, unionized settings, damages for wrongful dismissal, aggravated and punitive damages, duties of departing employees and restrictive covenants. Here, we focus on three groundbreaking decisions.Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362 on damages from wrongful dismissal.The Court in Keays had an opportunity to revisit damage awards for wrongful dismissal. The Court was clear that the Bardal factors continue to govern the reasonable length of notice required. The Bardal factors include the age of the employee; length of service, the character of the employment and the availability of alternative employment having regard to training, qualification and experience. The Court had an opportunity to revisit and to clarify its previous decision in Wallace in which it held that bad faith in the manner of dismissal would aggravate or lengthen the notice period. The Court now favours a strict forseeability test to damages: in other words “what did the contract of employment promise?”. Typically, it does not promise peace of mind but rather that an employee could be terminated with appropriate notice. If an employee can prove that it was foreseeable that damage of the sort suffered (such as mental distress) was in the minds of the parties entering the contract then damages may be awarded; regardless of any discussion of aggravated or punitive damages. Spelling out expectations at the time of contracting has never been more important.RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. (2008), SCC 54 on employment relationships and duties of employees to employers.In RBC, the Court considered the elements of the employment relationship and the duties of regular employees, being those who did not owe fiduciary duties to the employer. The Court held that regular employees are free to compete against the former employer after terminating their employment. During employment and any notice period the employees owe general duties of fidelity and good faith, and indeed often duties to provide proper notice of termination, but otherwise after termination are free to compete.The Court recognised that fairly drafted and reasonable restrictive covenants concerning competition and solicitation of clients may be enforceable: but these clauses were absent in this case. Are they in your contracts?KRG Insurance Brokers (Western) Inc. v. Shafron (2009), SCC 6 on the reasonableness of restrictive covenants.In Shafron the Court had occasion to determine the proper approach to severance in employment contracts. In this case, the Court examined a restrictive covenant purporting to prevent an employee from competing for three years after termination in “the Metropolitan City of Vancouver”. There is no such legal description for the City of Vancouver.The Court decided that it was not its role to either blue-line (meaning to strike out part of the clause to make it legal) or to engage in notional severance (meaning to read down or interpret a clause to save it) particularly in the case of employment contracts. In fact, the Court found that notional severance would not be used in employment contracts at all. The lesson is that any restrictive covenant must be drafted with the utmost of care to ensure certainty and unambiguity or it may be stuck out, leaving no protection of the employer’s business interests. An interesting question then is whether describing the geographical radius as the “Lower Mainland of BC” is also unclear and ambiguous. We are now challenging a number of restrictive covenants which employ this term to describe the South Coast of BC.Understanding and appreciating these important Court rulings are key to maintaining proper employment relations, protecting your business and ensuring that your business does not end up on the wrong side of the law.Why This MattersYour business survives on its profitability and on its reputation. Ignorance of the law of employment can cut into your profitability with the potential for large damage awards. If that is not enough, then think of the large damage award with a sensationalized headline in your local paper. Customers and clients are making choices about service providers today in many instances based on value and not on loyalty: will you continue to be their top choice?

Why Pre-Employment Screening is So Critical |

It is the ultimate nightmare for every human resources, security, or risk-management professional: Your phone rings late Friday afternoon as you wind up loose ends from yet another challenging week and are looking forward to a quiet weekend. A panic-stricken voice informs you that Pat in accounting has assaulted another co-worker and threatened to harm a supervisor. It turns out Pat was not only stealing money, but did not really have the experience claimed.As the mess is being sorted out, everyone will be asking you the same question over and over. From the company CEO, CFO, and corporate attorney to managers, supervisors, and co-workers, there is one thing everyone wants to know: How did that person get hired in the first place?If the matter turns into litigation, the legal fees for just one incident of workplace misconduct can easily soar into the six figures, and jury awards can be astounding. Your firm can be sued by injured co-workers, members of the public who were damaged, or even the bad employee who may claim wrongful termination. Once litigation starts, you will also find that in addition to your normal duties you now have a second and nearly full-time job–dealing with the discovery process in litigation and the organizational fallout.The statistics on the consequences of even one bad hire are chilling. The financial cost to businesses from theft, violence, and false credentials can be enormous. There are other costs that are hard to measure, such as the harm to employee morale or the firm’s reputation. Industry statistics suggest the cost of even one bad hiring decision can exceed $100,000, taking into account the time spent recruiting, hiring, and training and the amount of time the job is left undone or done badly by an unqualified applicant.Given the enormous price tag of a bad hiring decision, it is no surprise that employers of all sizes are turning to various tools to boost the effectiveness of their hiring process. The tools run from honesty and skills testing to behavior-based and group interview techniques.Ultimately, none of these tools has proved effective in weeding out bad candidates, unless used in conjunction with a program of pre-employment background screening to obtain hard facts about a candidate.Pre-employment background screening works in four critical ways:o Just having background screening can discourage applicants with something to hide. A person with a criminal record or false resume will simply apply to a company that does not pre-screen.o It limits uncertainty in the hiring process. Although using instinct in the hiring process can be important, basing a decision on hard information is even better.o A screening program demonstrates that an employer has exercised due diligence, providing a great deal of legal protection in the event of a lawsuit.o Having a screening program encourages applicants to be especially forthcoming in their interviews.Pre-Screening ToolsChecking criminal records is a good example of a pre-screening process that helps promote safe hiring. It is estimated that 10 percent of job applicants have criminal conviction records relevant to the hiring process; without a screening program, it is statistically almost certain that a company will hire someone with a criminal record. Contrary to popular perception, there is no national database available to private employers. Criminal records are normally checked by having qualified researchers visit courthouses in counties where an applicant has lived or worked. Because there are more than 10,000 courthouses in America where records are kept, most employers outsource this task to qualified firms that specialize in pre-employment screening.Another important tool is resume verification. Job applicants often use their resumes as a marketing tool, but the hiring company can find itself in trouble when resumes exceed the bounds of honesty. It is estimated that up to 30 percent of resumes contain material falsehoods that pertain to previous employment, education, and professional licenses. A professional screening firm can verify whether an applicant has the degrees or licenses claimed. Even if a past employer will not give details about job performance, just verifying the job dates and job title is crucially important. One of the most critical parts of the hiring process is to look for unexplained gaps in employment. That is important in order to help a screening firm check the appropriate courthouses while searching criminal records.Other tools can include credit reports (when relevant to the job), Social Security number traces, driving records, national wants and warrants, as well as civil and federal court records.Common Employer ConcernsEven with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks. These are the seven most commons concerns that employers express:Is it legal?Employers have an absolute right to conduct lawful pre-employment screening in order to hire the best-qualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know whom they hire with an applicant’s right of disclosure and privacy. Under that law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated the same. A qualified screening company will assist an employer with legal compliance issues.Does it invade privacy?No. Employers can find out about only those things that an applicant has done in his “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that is a valid and non-discriminatory predictor of future job performance. To maintain privacy, most background firms have Internet systems with secured Web sites. Employers should also take steps to maintain confidentially within their organization, such has keeping reports in a separate file from the personnel files.Is it cost-effective?A pre-employment screening will typically cost less than the cost of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, and not all applicants. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, and money is well spent to avoid problems in the first place.Does it discourage good applicants?Employers who engage in screening do not find that good applicants are deterred. Job applicants have a desire to work with qualified and safe co-workers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion.Does it delay hiring?No. Background screening is normally done in just 48 to 72 hours. Most of the information needed is not stored in databases but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays that are out of anyone’s control, such as previous employers who will not return calls, schools that are closed for vacation, or a court clerk who needs to retrieve a record from storage.Furthermore, an organization that is careful in its hiring practices should find a lower rate of “hits” during background checks. There are a number of steps a firm should take to ensure safe hiring well before a name is submitted to a background company. These techniques include making it clear your firm does background checks in order to weed out bad applicants, knowing the “red flags” to look for in an application, and asking questions in interviews that will filter out problem candidates.Is it difficult to implement?For an overburdened HR, security, or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. A qualified pre-employment screening firm can set up the entire program and provide all the necessary forms in a short period of time. Many firms have Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.How do we select a service provider?An employer should look for a professional partner, not just an information vendor selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if a employer were choosing a law firm for legal representation, it would not select the cheapest–it would clearly want to know it is selecting a firm that is competent, experienced, and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal Fair Credit Reporting Act.Both employers and applicants have learned that pre-employment screening is an absolute necessity in today’s business world. More importantly, they’ve learned due diligence in hiring is a way to keep firms safe and profitable in these difficult times.

End of Employment in Thailand and the Right to Severance Pay |

Undue termination of employment is a worldwide epidemic. As all working people aim to achieve financial security, loss of a job for unfair reasons is demeaning whatever the cause may be. Thailand is affected by this epidemic in a similar manner. To cushion its heartbreaking effects, a discussion on the labor laws of Thailand concerning termination and severance pay is called for.Termination of employment equates to end of employment- end of the employees obligation to render work, and the end of the employer’s obligation to pay for the work done.This obligation may end due to several causes which may either be just or unjust. If employment is terminated for a just cause (permissible cause under the law), the employer is NOT required to give severance pay.SEVERANCE PAYSeverance pay is the compensation given to the employee when a contract is terminated or when the employer commits any act to prevent the employee from continuing to work or discontinues payment of wages to this end. This compensation is also due when the termination is the result of the employer’s inability to continue business operations. The compensation is not due upon termination of a contract concluded for a definite period. The latter is not termination per se but merely the end of the duration of the contract presumably entered into freely by the parties to it.
Severance pay will also be denied the employee when the employee has been dishonest on duty; has deliberately committed a criminal offence against the employer; has intentionally caused damage to the employer; has violated working rules or lawful orders from the employer; has been absent for three consecutive working days without justification; has caused serious damage to the employer due to negligence; or has been sentenced to imprisonment.EMPLOYEES ENTITLED TO SEVERANCE PAYAs already stated, regular employees under contract are entitled to severance pay as a general rule. Fixed-term employees or those whose work duration is specified at a specific duration only may also be given severance pay if the duration of their employment is up to a maximum of two years on a temporary project. Seasonal employees performing work which is not part of the main business of the employer are also entitled to severance pay provided that in both cases, the employment agreement is put into writing at the onset of the employment period.AMOUNT OF SEVERANCE PAYThe amount of compensation depends on the length of service. For an uninterrupted period of service between 120 days and one year the compensation for time-rate and piece-rate work alike amounts to the last 30 days’ wages. For a period of service between one and three years, compensation equals the last 90 days’ wages. For a period of service of over three years the amount of compensation corresponds to the last 180 days’ wages. The period of service includes holidays, leave days and days that the employee has been exempted from work for the convenience of the employer.In the event that the work of the employee is interrupted due to the employer’s fault, suck discontinuity is disregarded, regardless of the assignment of the employee and the length of the gap between assignments.In the event of retrenchment following restructuring, an employer who does not give notice or gives notice less than 60 days in advance must pay compensation in lieu of notice, equal to the last 60 days’ wages.
This compensation substitutes for the normal compensation in lieu of notice provided for in the CCC. If the employee has been employed for at least six years, however, the employer must pay additional compensation equal to 15 days’ wages for every year of employment, with a maximum amount equal to 360 days’ wages. With respect to this additional compensation, a period of work of more than 180 days constitutes a year.VALID GROUNDS FOR DISMISSALThe Labor Protection Act of Thailand sets out the grounds on which an employer may dismiss an employee without notice and without having to make a severance payment:

Dishonesty in performing duties or intentionally committing criminal offenses against the employer.
Intentionally causing loss to the employer.
Acting recklessly or negligently, causing serious loss to the employer.
Violation of the employer’s rules, regulations or orders, which are both lawful and fair, provided the employer has given prior warning, except in a serious case where the employer is not required to give a warning. A written warning is effective for one year from the date of the violation.
Absence from duties for three consecutive working days without reasonable cause, whether or not a holiday intervenes.
Imprisonment under a final court judgment. If the offense is one of negligence or a petty offense, it must cause loss or damage to the employer.
Pregnancy and involvement in trade union membership or trade union activities are NOT valid causes for dismissal under Thai laws.DISMISSAL NOTICEWhere an employer dismisses an employee for a permitted statutory reason, the reason for such dismissal must be stated in the dismissal notice. If the reasons are not so stated, then the employer will be estopped from raising them as a defense in any proceedings subsequently brought by the employee.When an employment contract for a fixed period has expired, the employment will end without giving notice.Where the employment contract does not specify the period of employment, either party may terminate it by giving to the other written notice, within, or before the wages are due, with the effect that employment is terminated when the next payment is due, but not more than three months notice need be given.A probationary period is deemed to be a non-specified employment contract. In the case of termination, the employer must pay wages due to the date employment is ended, as notified, and the employee may leave. Payment may be given in lieu of notice.No notice is required where employment is terminated for permitted cause under either the Labor Protection Act, or the Civil and Commercial Code.If you need more information about employment disputes in Thailand you should contact a Thailand lawyer.