Boxoffice-March.1988

LABOR AND
EMPLOYMENT
IN THE
THEATRE
(continued from SW-16)
Protective Measures
In light of the remote possibility that
employers will receive legislative or judicial
relief in the wrongful termination
area, employers must engage in self-help
measures. There are two categories of
steps that employers can take for this,
purpose. First, employers should consider
the adoption of some policies and practices
that are designed to keep their termination
decisions away from the court
room or, at a minimum, juries. This may
include the adoption of well-drafted policies
in employee handbooks' and application
forms that attempt to enhance the
employer's ability to argue that employment
is expressly at-will. Consequently,
the employer can argue that the at-will
relationship cannot be altered by the judicially-recognized
implied covenant of
good faith and fair dealing. Significantly,
the objective of this measure is not to discourage
employers from acting entirely in
good faith and fairly with respect to their
9[1KPniSSIOP
employees. Rather, it is designed to enable
the employer to avoid having to
demonstrate many years later that it has
met this burden. Quite simply, it is designed
to lower the threshold that the
employer will have to pass to prevail in
any wrongful termination action.
Second, there are measures that employers
can implement that will both
reduce the likelihood that wrongful discharge
actions will be filed and enhance
the employer's ability to demonstrate that
they fully met the duty of good faith and
fair dealing, if it is found applicable.
These measures include good investigations,
a two-on-orie rule, fair warning and
progressive discipline procedures, good
documentation procedures, exit interview
procedures, grievance procedures, a comprehensive
review of employee handbooks
and personnel policies, a centralization
of authority to impose or approve
serious disciplinary action in the human
resources department, and, importantly,
an evaluation of the performance of the
employer's performance evaluation system.^
The benefits that can potentially be
reaped from good personnel policies— not
alone but in the aggregate— are enormous.
Conclusion
Wrongful termination cases will not
end. Although many employers will respond
to the call and adopt protective
measures, many will continue to operate
in the bliss of not knowing that there
exists a wrongful termination doctrine
9PODUCIIOnS ^1D
and a need to be circumspect when
administering disciplinary decisions. The
bliss will of course end when a lawsuit is
filed and a former employee seeks to
recover megabucks from the employer and
individuals responsible for the discharge.
Unfortunately, the first meeting with experienced
labor counsel will be the eyeopening
experience for these employers
and may simply be too little, too late.
Those who are willing to be patient and do
what is necessary not only to be right, but
also to be in a position to prove, if necessary,
that they were right will be less likely
targets for wrongful termination actions.
More importantly, even if sued,
such employers will certainly be less likely
victims of large jury verdicts.
Employers must recognize that their
human resource functions will emerge
through the clouds of confusion that surround
this area with the concepts that can
save employers thousands in legal fees,
hundreds of hours of lost time and productivity
wasted in judicial disputes, and
at least as much real emotional distress
for the defendants as apparently any
plaintiff can allege with a stroke of a pen.
The himian resource fimction is a gold
mine to employers—not in money that it
will produce—but in dollars it will save
Those who greet the challenges that
await them in the next decade will face
serious responsibilities and derive significant
benefits from their roles. The most
effective human resource professionals
will find that encouraging fairness and
adopting sound personnel practices will
be the best key to avoiding and winning
wrongful termination cases. Interestingly,
they will advance their employers' interests
most effectively by advancing employees'
interests. Employers will find it
more effective and less expensive to consult
with their labor lawyers before the
termination rather than after. They will
therefore be wise to invest their time and
efforts in the fair treatment of employees
before they get to the court room. tttt
'The Employee Handbook and Personnel
Policies Manual by Richard J. Simmons,
published bv Castle Publications, Ltd.,
P.O. Box 580", Van Nuys, California 91408,
contains sample language for these and
other policies.
CREATIVE YET AFFORDABLE
GENERIC DATERS, CUSTOM
POLICY TRAILERS, CORPORATE LOGOS
AND SPECIALTY TRAILERS
6102 Knoll Valley Drive, Suite 308
Willowbrook, Illinois 60514
(312) 654-3147
SEE US AT SHOWEST '88 BOOTH NO. 147
Hti-Dponbe; N{j 70
-A discussion of these areas is contained
in Chapter 14 of the Employment Disenminatiun
and EEO Practice Manual for Califiniia
Employers by Richard J. Simmons,
published by Castle Publications, Ltd.,
P O, Box 580', Van Nuys. California 91408
© Richard J Simmims All rights reserved
Printed by pcnnissiim of the author.
Richard J Simmons is a nationally acclaimed
author and lecturer and one of the
top civil litigation attomcys in Soutliern Califorriia
Representing employers in a broad
range of labor relations matters, In: is a recognized
expert in wage hour, employee
discrimination, wrongful tcnninitlion and
itniimization proceedings.
SW-18
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