When you have been harmed you may have an action.  If not, you generally do not.

            But is that employee at will or under contract?  This is becoming less clear in Massachusetts, and businesses and employees should hearken to this information and monitor their activity very carefully.

            Generally, an employee is at-will, when employed without a contract.  The advantage is the freedom to move on if an employee, and the freedom to replace for the employer. Hence either party may terminate the employment relationship at any time, for any reason - or not, so long as it does not violate public policy. However, manuals and policies as well as certain conduct may create an implied contract material that moved the employee into a contract status thereby giving him or her rights that an employer may not realize.

            So some tips...

                         1. Review those manuals to strike any language that may imply a contract or that contains language that is inconsistent with "at will" employment status;

                          2. Review those offer letters, to make sure they are not a contract

Joan Vennocchi of the Boston Globe writes an interesting piece in the Suffolk Law School Alumni Magazine (Winter/Spring 2007) about her years in night school at Suffolk Law. She explains with journalistic clarity her insight into how lawyers learn. She talks about arguments in class, study groups, and discussions. Her observations of the lawyer in training balancing perspectives and the depth of analysis reminds me that clients may not be aware of how lawyers are trained and how they assess a case.

It is helpful when retaining a lawyer to understand that legal solutions are milled by the mind over time with discussion, research and interaction with the facts you may have shared.

When you talk to a lawyer, they may ask questions that seem unusual to you. It may very well be that part of the analysis they are undertaking in getting to the core of your issue takes them down a circuitous route. In fact, you will wonder if they heard anything that you said. At least initially they are searching for the key elements of your situation and applying the law to them as best they can before they consult the legal research that will get them up to speed on your topic.

So a reminder information on a blog such as this can never pass as legal advice - even tips – unless you have retained the lawyer to represent your interests and shared all the details fo your matter. Anything short of that will not serve you well.

At will Employees are people too, and they may have an employment contract

    Speaking of Business practices, how are your employees today? Are they old, overweight, black, white, Asian, disabled, impaired, injured, harassed, ill, depressed… not common words that you would use to describe your employees. You may know them by name or position or their ability to hit a golf ball, catch a fish, or a family connection from the wedding you attended.

    How you think of your employees may determine your future exposure to issues that may arise in employment litigation…so with that in mind, how connected to your organization are they? Do they have a contract? Or are they at will, that is, can be released virtually at any time and for no reason?

    We will address some of these topics every so often to keep you up to speed…

"Progressive Discipline" at work may be a Problem:

    Consider the recent case of Ortega v. Wakefield Thermal Solutions where progressive discipline backfired on the employer. The company did not follow their own company’s policy. Doesn’t this create a right in a job to be terminated in a certain way and thereby your employee may not be at will at all?

    The employee relied upon the progressive discipline and therein was able to be treated as if she had a contract.

Tips

1. Disclaim: Disclaim Contract by repeatedly re-stating the at-will employment relationship exists

2. Notify: When you make changes in a policy or employee manual or handbook, make sure all employees get a copy and know its content