July 2, 2010

DELAWARE ATTORNEY EXPLAINS THAT AT-WILL EMPLOYEES CAN SUE FOR WRONGFUL DISCHARGE

Even though the general rule is that an at-will employee can be terminated for any reason, with or without cause, and at any time, Delaware recognizes that there are exceptions which allow an at-will employee to sue for wrongful discharge. In a previous article, I listed the 4 exceptions. In this article, let's focus on 2 of them.

THE PUBLIC POLICY EXCEPTION
The concept behind the public policy exception is based on good faith and fair dealing. To qualify under this exception, a two-part test must be satisfied:
(1) the employee must assert a public interest recognized by some legislative, administrative or judicial authority and
(2) the employee must occupy a position with responsibility for advancing or sustaining that particular interest.

PROMISSORY ESTOPPEL
The purpose of promissory estoppel is to prevent injustice. And it applies not only to pre-hire promises but also to post-hire promises that at-will employees have relied on. In order to establish a claim for promissory estoppel, the employee must show by clear and convincing evidence that:
(1) a promise was made;
(2) it was the reasonable expectation of the employer to induce action or forbearance on the part of the employee;
(3) the employee reasonably relied on the promise and took action to his detriment; and
(4) such promise is binding because injustice can be avoided only by enforcement of the promise.

If you were an at-will employee who was fired for reasons you feel were unjust, consult with a Delaware attorney to discuss your rights.

Posted by Charles Snyderman | | Email This Post

Posted In: At-Will Employment

Bookmark and Share

June 21, 2010

DELAWARE ATTORNEY EXPLAINS AT-WILL EMPLOYMENT

In Delaware, if there isn’t a written employment contract and the duration of employment is indefinite, the employee is considered an “at-will employee,” which means the employer can fire the employee at any time without cause and regardless of the motive. That’s the general rule, and if you think about it for a minute, it’s actually fair. After all, if an employee can quit at any time and for any reason, why can’t an employer terminate the employee at any time and for any reason? But as with most general rules, there are exceptions. And the exception that’s recognized in Delaware is based on the concept that in every contract of employment, written or oral, there’s an implied covenant of good faith and fair dealing.

The Delaware courts that have looked at this issue have decided that an employee can claim a breach of implied covenant of good faith and fair dealing in any one of the following 4 situations:
(1) if the termination violates public policy;
(2) if there’s been misrepresentation by the employer and the employee relied on it;
(3) if the employer used its position to deprive the employee of compensation that has already been earned but not yet paid; and
(4) if the employer falsified its records to create fictitious grounds for the employee’s termination.

In a future article, we’ll take a closer look at these exceptions.

If you believe you were fired improperly, contact a Delaware litigation attorney to discuss your rights.

Posted by Charles Snyderman | | Email This Post

Posted In: At-Will Employment

Bookmark and Share

November 9, 2008

Unemployment Compensation & "Just Cause"

In a previous article entitled At-Will Employment In Delaware, I wrote about how Delaware employers have the right to fire their at-will employees without warning and without giving the employee an opportunity to improve. As a Delaware business lawyer, I have to remind my clients that employees who are terminated have the right to collect unemployment compensation unless there was "just cause" for their termination.

According to the courts in Delaware, "just cause" means a wilful or wanton act or pattern of conduct in violation of the employer’s interest, the employee’s duties, or the employee’s expected standard of conduct.

In this context, the word "wilful" means actual, specific, or evil intent, while the word "wanton" means needless, malicious, or reckless conduct.

There are some rules to remember when it comes to whether there was just cause.

1. An employee's wilful or wanton conduct will not be just cause for termination if the employer has consistently tolerated this conduct by his employees.

2. In order for there to be just cause, there must be notice to the employee that poor performance or behavior could result in termination of employment.

3. Violation of a company rule can be considered just cause, but only if the employee is aware of the rule and that violation of the rule can lead to termination.

4. Poor attendance can amount to just cause for termination.

The Delaware Department of labor puts out an Unemployment Insurance Handbook For Employers which is available here for downloading.

Posted by Charles Snyderman | | Email This Post

Posted In: At-Will Employment

Bookmark and Share

August 14, 2008

At-Will Employment in Delaware

A small business owner recently asked about the steps he has to take before he can fire one of his employees. His questions included how many warnings the law requires him to give the employee, how much time he has to give his employee to improve his performance, and once the decision to terminate employment has been made, how much advance notice must the employee be given.

If there’s a written employment contract with the employee, then the contract will provide the answers to these questions. However, assuming there’s no contract, an employer in Delaware can fire an employee without warning, without an opportunity to improve, and without notice. In fact, the employer doesn't even have to explain why the employee is being fired. This is what’s meant by an “at-will employee.” An exception to this rule is that the employer can't fire an employee for reasons that discriminate based on such things as age, gender or race, or which violate the Americans With Disabilities Act. Another exception is that in Delaware, an employer can't engage in conduct that amounts to fraud, deceit or misrepresentation. For example, an employer can't falsify employment records to provide a false reason for firing an employee.

Posted by Charles Snyderman | | Email This Post

Posted In: At-Will Employment

Bookmark and Share

Subscribe

Subscribe to the blogs's ATOM feed Subscribe to the RSS feed

Click on the subscribe button to select from your favorite blog reader options.

Subscribe

Contact Us

Recent Entries

Legal Blogs