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.
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