By Deborah Casey Brown
In South Carolina most employment relationships are subject to the employment- at will doctrine under which an employer can discharge an employee for any reason; however the South Carolina appellate courts have created a number of exceptions to this rule. One potential exception to the doctrine, which has been the subject of many recent cases, is whether the language of the employee handbook can create an implied contract of employment.
For a period of time it appeared that a handbook case would almost certainly go to a jury trial if the handbook contained any mandatory or promissory language. That trend appeared to change during the second half of 2004 in a line of cases in which the South Carolina appellate courts held that the handbooks at issue did not alter the employee's at will employment status and, therefore, breach of contract claims could not be made. As a result, it appears that employers who wish to do so can list work rules or disciplinary rules in employee handbooks if the employer does so with advice of counsel including appropriate discretionary language both at the beginning and the end of the "work rule" or "conduct" listing.
Also, employers should take advantage of the statutory protection set forth in S.C. Code Ann. 41-10-110 which was enacted last year in an attempt to protect employers from breach of contract claims based upon handbooks or other written policies. The statute must be carefully followed to obtain protection. Included among its requirements are a conspicuous disclaimer, issuance of a new handbook after June 30, 2004, and an employee signature on the first page. Any employer contemplating either a policy change or issuance of a new handbook should consult employment counsel to ensure compliance with the statute and with the recent line of cases addressing the at-will doctrine.
Finally, small employers with fewer than fifteen employees should be aware that in one of the recent cases, Hessenthaler v. Tri County Sister Help, Inc., the South Carolina Supreme Court held that an employee can pursue a claim for discrimination by filing a case alleging wrongful discharge in violation of public policy. This decision is troubling because both state and federal civil rights statutes only apply to employers with fifteen or more employees. As a result of this decision, small employers may now need to consider educating employees with human resource responsibilities so they will be prepared to respond promptly to claims of discrimination and harassment.
Deborah Casey Brown, a Partner at GWB, is a certified Employment and Labor Law specialist. For more information, visit www.gwblawfirm.com or call Gallivan, White & Boyd, P.A. at (864) 271-9580.
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