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HRM 6103 Employment Law For The Retaliatory Firing

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HRM 6103 Employment Law For The Retaliatory Firing

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HRM 6103 Employment Law For The Retaliatory Firing

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Course Code: HRM 6103
University: Texas Tech University

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Country: United States

Write about the Employment Law For the Retaliatory Firing.

Retaliatory firing
An employee is protected from the occupational hazards and workplace issues by way of various employment laws. It is unjust and unethical to fire an employee on account of personal grudge or retaliation for an employee filed a complaint with the union or any other regulatory body. In this case, the employee filed a complaint with the Occupational Safety and health Administration, accusing the employer for violating safety standards in the printing plant. She was eventually fired from the organization when she held a meeting with her coworkers. It was alleged that she was fired for she was abusive towards her supervisor and threatened him. Assuming that the allegations are true, the employee was eligible to be heard by the decision-making authority and eventually asked to show cause for such misconduct. Misconduct cannot be the primary and sole reason to be terminated, and in such situation, it is easier to prove the ‘retaliation’ factor to the court (Modesitt, Schulman & Westman, 2015).  Section 11(c) (1) of the Occupational Safety and Health Act (OSHA) clearly mentions that an employee cannot be discharged or discriminated for she has filed a complaint, instituted a proceeding, or has testified against the organization in a proceeding. The U.S. Department of Labour facilitates for the employees to submit complaints of retaliation faced from their organization (Herman v. Crescent Publishing Group, Inc). Other Acts like the Civil Rights Act, Equal Pay Act, and Discrimination in Employment Act protects employees from termination due to unlawful retaliation. 
Meetings among co-workers
The lunchtime meeting between the employee and her coworkers does not constitute a threat or collusion among the employee pertaining to the organization. A healthy exchange of words between coworker is just normal and supported by all major employment laws. Therefore, it cannot be a reason for the employee to discharge an employee (Acker, 2018). 
Department of Labor’s decision to honor the appeal
In this case, the court would not order the Department of Labor (DOL) to grant the appeal as the company could not prove that Occupational Safety and health Administration (OSHA) official provided it with wrong information regarding the inclusion of weekends or holidays for calculating the last date to file the company’s appeal to the DOL. It is essential to prove such strong allegation regarding negligent misstatement or wrong information provided by a regulatory body like OSHA, whose major responsibility is to provide necessary information (Atlantic Adjustment Co. v. US Dept. of Labor).
Pros and Cons of Policy Consideration
The pros of the policy consideration is that the company has the scope to prove themselves right and establish that they were provided with a misstatement or wrong information by the OSHA official. The company could highlight the fact to the court that the department failed to give the correct information and such wrong information affected its eligibility to appeal.
While the cons of the policy consideration is that, it is quite difficult for the company to establish the fact that OSHA provided wrong information about the appeal date. The company could throw light on the fact that OSHA and DOL are both government organizations and they are in the position to cover for themselves.
Constitutional issue: involved or not
In this case, the company filed a Mandamus action to the court, requesting the permission to file for an appeal to the Department of Labor for a civil monetary penalty assessment. However, the case does not attract any constitutional issue nor does it infringe any constitutional provision. Therefore, the Articles of the U.S. Constitution would not have an effect on it.  
Wrongful discharge
A company cannot terminate its employees without reasonable grounds and even if it does, it is liable to pay unemployment compensation to such laid-off employee. The criteria for unemployment compensation depends on the fact that the employment id unemployed devoid of his or her own faults and is fit for work whenever that is made available to him. Factors like incompetence or an at-will employee would not be disqualified from unemployment compensation (Kandilov & Senses, 2016). However, unemployment compensation would not be granted if the employee is laid-off or terminated on the ground of willful misconduct. However, it is stated that even if the willful misconduct is clearly highlighted, it may not be a sufficient reason to disqualify an employee for granting unemployment benefits.
Therefore, the employee would be liable for unemployment compensation in this case even though he engaged in battery with his co-worker, which is a violation of employees’ code of conduct in an organization. Battery is an act that involves two person, therefore punishing one with no compensatory amount would be unjust. The court would grant compensation to such terminated employee (Quebedeaux v. Dow Chemical Co).
Compensation under Worker’s Compensation Act
The plaintiff would be liable to receive a compensation under the Workers’ Compensation Act as damages does not only involve physical hurt, but include physical and mental pain and suffering as well (Odom v. Claiborne Elec. Co-op., Inc). In addition to, the judges and the juries have the discretion to assess the criteria of damages; hence, they are likely to comprehend and construct the fact that the plaintiff would be liable to be awarded damages for the tort committed against him and for the wrongful discharge by the company (Youn v. Maritime Overseas Corp). the employee has to be held liable based on the concept of vicarious liability of an employer for a tortious act of its employee committed on another. 
Unemployment compensation for Burton
It is the duty of the employer to advise his employee to appear for a second dope test within 72 hours, once the employee has been tested positive of smoking marijuana or any other contraband substance. Failure to do so would attract charges against the employer for being negligent about one’s own employee and his well being in the professional front (Southwood Door Company v. Raymond Burton). Therefore, in this case, Burton was neglect by his employer who missed out on advising him for appearing for a second dope test which was extremely essential to prove Burton’s innocence. Thus, Burton would be given the benefit of doubt and should be provided with unemployment compensation. Moreover, it is applaudable as he took the initiative to get himself checked and received a negative report.
Here, the referee should allow Burton’s personal purchased drug test as an appropriate evidence as Southwood, the employer could not produce sufficient evidence to prove Burton’s misconduct (Venn, 2012). This, the plaintiff should be held guilty for showing such negligence toward his employee as such negligence or misconduct could put Burton behind the bars, even without being guilty.
Importance of the personally purchased drug test
The personally purchased drug test should be held just and accurate by the referee as Burton paid out of his own pocket to prove his innocence. It is a great a mark of honestly and diligence which deserves appropriate compensation for losing job for no reason.
Therefore, to conclude, Burton would be eligible to receive unemployment compensation for the plaintiff could not cite sufficient evidence against Burton’s drug usage or employment related misconduct (Raymond Burton v Southwood Door Company). 
Acker, G. M. (2018). Self–care practices among social workers: do they predict job satisfaction and turnover intention?. Social Work in Mental Health, 1-15.
Atlantic Adjustment Co. v. US Dept. of Labor, 90 F. Supp. 2d 627 (E.D. Pa. 2000)
Herman v. Crescent Publishing Group, Inc., 2000 WL 1371311 (S.D.N.Y. 2000)
Kandilov, I. T., & Senses, M. Z. (2016). The effects of wrongful discharge protection on foreign multinationals: Evidence from transaction?level data. Canadian Journal of Economics/Revue canadienne d’économique, 49(1), 111-146.
Modesitt, N. M., Schulman, J. F., & Westman, D. P. (2015). Whistleblowing: The Law of Retaliatory Discharge. Bloomberg BNA Books.
Odom v. Claiborne Elec. Co-op., Inc., 623 So. 2d 217, 221
Quebedeaux v. Dow Chemical Co., 809 So. 2d 983
Raymond Burton v Southwood Door Company, MEA, INC. and Medical Group South  No. CIV.A. 4:02CV107LN
Southwood Door Company v. Raymond Burton No. 2002-CC-00893-SCT
Venn, D. (2012). Eligibility criteria for unemployment benefits.
Youn v. Maritime Overseas Corp., 623 So. 2d 1257

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