Friday, November 10, 2017

O'Reilly's alleged "proven in court" clause

With all of the sexual harassment allegations flying around the media and entertainment industries, I've been trying to pickup tidbits that relate to law (and contracts). One story that stuck out to me was: O’Reilly Contract Barred Fox From Firing Him Unless Claims Proven In Court. According to testimony from an "Independent Director of 21st Century Fox," there was "an employment agreement with Bill O’Reilly which stated he could not be dismissed on the basis of an allegation unless that allegation was proved in court."

In retrospect, it's easy to see how this could allow a serial sexual harasser to keep his job so long as no litigation or criminal charges were ever taken all the way to trial and proven in court. That's a problem. However, at a high level, job security is one of the primary reasons people sign employment contracts to begin with.

Generally, employees serve "at will" and can be terminated for any reason at all (so long as that reason is not specifically prohibited by law or public policy) or even no reason. A contract is a way to afford greater security, whether it's the multi-millionaire pundit or the union member with a CBA.

In fact, good luck finding a CBA that does not require "just cause" for terminating employees, along with a grievance procedure that ends in arbitration. Is a "prove it in arbitration" clause really that different from a prove it in court clause?

Ultimately, requiring allegations to be proven in court prior to termination may be too high of a bar (and most employers would not want that burden). However, it is not at all uncommon for employees to insist on some type of contractual due process prior to termination; and, it's a benefit many employers are willing to provide to secure labor. We shouldn't lose sight of that when considering these issues.