An Employer's Right to Cure
| Jurisdiction | United States,Federal |
| Citation | Vol. 24 No. 10 Pg. 2353 |
| Pages | 2353 |
| Publication year | 1995 |
1995, October, Pg. 2353. An Employer's Right to Cure
Monty had just walked into the worm pasture---a tub of dirt filled with worms and lit only enough to meet the OSHA standards applicable to insect-rearers, 29 C.F.R. § 1936.10 et seq. ("the worm regs"). There, he saw Eddy "The Lunker Hunter" Edwardo secreting a handful of WOW2's plumpest wigglers into his suitcoat pocket.
Eddy's nickname derived from his unbridled passion for bass hunting. It was clear to Monty that Eddy had less than the best of intentions for the poor worms. On feeling Monty's mighty glare, Eddy broke forth, in as spontaneous an utterance as ever has been heard: "I took the worms, and I wasn't planning on paying for them."
Mighty Monty's magnificent wrath was beyond control. He issued his terrible judgment there and then: "Eddy, I don't want to hear it. Your worm wrangling days are over. Pack your bags and be out by sundown."
Unfortunately, Monty had forgotten one thing---to read WOW2's employee manual. Had he thought to read the manual, he would have found in § 19, ¶ 4, subsection 157(q), that WOW2 had promised to hold a hearing before terminating any employee, at which hearing the employee was to be given an opportunity to explain and defend his or her actions.
Monty would soon learn all about § 19, ¶ 4, subsection 157(q), and Continental Air Lines, Inc. v. Keenan,(fn1) when WOW2's employment lawyer explained that WOW2 may well have to reinstate Eddy, plus pay back pay and other miscellaneous damages, in addition to its own attorney fees and costs in the lawsuit sure to come.
What was Monty to do?
This issue occurs all too often for real employers. Many employers have discharged an employee for what they believed was unchallengeably good cause. They documented each and every infraction. However, their employee manual contained a specific procedure to be followed, such as a pretermination hearing, and in the explosive heat of the discharge, the employer failed to follow the procedure.
The employer may be a national corporation with a manual that is often issued from corporate headquarters, then followed or ignored in the regional offices. Alternatively, the employer may have a written employment agreement with an employee containing a similar clause governing the procedure for discharge. Whether by express or implied contract, such employers are faced with the difficult situation of having a good substantive case undercut by a procedural flaw in the discharge.
A recent Tenth Circuit decision offers a...
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