Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

A contract for thee but not for me

A guy goes to work as a driver for a trucking company.  He's given an employee handbook -- and signs an acknowledgement that he received it -- which provides, among other things, that if he quits with less than two weeks notice he gets paid only minimum wage for the last two weeks he works.  He quits on one day notice, the company pays him the minimum for the last two weeks -- some $800 less than he would have gotten -- and he sues.

Oh, one more thing.  The very first paragraph in the acknowledgement he signed says, "It is understood that nothing in this Handbook, nor any other Company communication or practice, creates an employment contract of any type."

Should be a no-brainer, right?  Well, not to the 3rd District, which held the other week in Kirby v. Elmco Trucking Co. that the provision was enforceable, vacated the judgment of the lower court, and instructed it to calculate the amount of wages Kirby was entitled to receive under the minimum-wage provision.

Sure, Kirby didn't file a brief on appeal, but you shouldn't have to be Louis Brandeis to figure out that a document which explicitly states it's not a contract isn't... well, a contract.  Especially since this same court, on at least three occasions in the last six years, has been confronted with a case in which an employee has sued for wrongful discharge based on violation of the terms of an employee handbook, and on each occasion the court has held that the handbook didn't create any contractually enforceable rights. 

In other words, when the company wants to let somebody go, the handbook provides no protection to the employee, but when the company wants to job some working stiff out of eight hundred bucks, suddenly it's an enforceable contract. 

There's a theory of law called Critical Legal Studies, which basically holds that the law is made by people in power for the primary goal of allowing them to maintain their power.  I never bought into that; it always sounded too much like the stuff you'd read in the broadsheets that the scruffy-looking kids from the Spartacus League would hand out down on Coventry in the 1970's.

But then you read decisions like Kirby, and you see the laws that are passed after the lobbyists in the two-thousand-dollar suits get done working their charms in the halls of Congress or the state legislature in Columbus, and there are moments when you think maybe, just maybe, those scruffy-looking kids down on Coventry were on to something.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case