CASES THE EMPLOYER FAILED TO HIRE AN EMPLOYEE AS A RESULT OF NOT JOINING A UNION

April 3rd, 2008, 9:06 am

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C.A. §157. As we read the section it means that an employer may not require an applicant for work, as a condition to accepting him for employment, to join or to resign from a union, nor insert in the contract of employment any other discriminatory term that encourages or discourages membership in a labor organization, excepting only that, if the facts stated in the proviso exist, the employer may require membership in the labor organization which has been legally chosen to represent his employees.

Unions and employers are not allowed to require employee who objects to union membership to articulate his or her ideological objection and then to determine whether employee’s objection is “ideological” or “political” enough to be constitutionally protected. Conley v. Massachusetts Bay Transp. Authority, 539 N.E.2d 1024 (1989).

Filed under Employment Discrimination, employee rights · 1 Comment

Can you be terminated just prior to vesting in your benefits?

April 2nd, 2008, 9:53 am

The Court held that the covenant of good faith and fair dealing is violated when an employer terminates an at-will employee without good cause and deprives the employee of a clearly identifiable future compensation reflective of the employee’s past services. Fortune v. Nat’l Cash Register Co., 373 Mass. 96, 104-05 (1977).Whether particular benefits relate to past or future services is a matter of law to be decided by the court where the contract terms agreed to by the parties are undisputed. Sargent v. Tenaska, Inc., 108 F.3d 5, 8 (1997). A cause of action might exist for an employee at will who was terminated in bad faith one month before his partial interest in a five year project was scheduled to vest. Id. Where benefits such as shares of stock are subject to a vesting schedule over time and vest only if the employee continues to be employed, such benefits are contingent on the employee providing future services for the employer and thus are generally not compensation for past services. Harrison v. NetCentric Corp., 433 Mass. at 473-474 (2001).

The Supreme Judicial Court has recognized an exception to the general rule allowing for termination of an at-will employee with or without cause, which states that an employer may not terminate an at-will employee “if the termination violates a clearly established public policy.” King v. Driscoll, 418 Mass. 576, 582 (1994); Wright v. Shriner’s Hosp. for Crippled Children, 412 Mass. 469, 472 (1992). The determination of whether a “public policy” is implicated in the discharge of an employee is a question of law for the court. “It is not for the jury to define the public policy. The judge must determine whether, on the evidence, there is a basis for finding that a well-defined, important public policy has been violated.” Mello v. Stop & Shop. Co., 402 Mass. 555, 561(1988).

Filed under Employment Discrimination, employee rights · Comments