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Sidestepping an all-capitals disclaimer on page one of an employee handbook, Vermont’s Supreme Court has revived a woman’s right to sue her ex-employer for breaching an implied contract when it fired her. The 3-2 ruling reverses in part a trial court grant of summary judgment for Champion Jogbra of Burlington, Vt., and against fired sales administrator Linda Dillon. Dillon v. Champion Jogbra, No. 2000-560. The disclaimer said: “THE POLICIES AND PROCEDURES CONTAINED IN THIS MANUAL CONSTITUTE GUIDELINES ONLY. THEY DO NOT CONSTITUTE PART OF AN EMPLOYMENT CONTRACT, NOR ARE THEY INTENDED TO MAKE ANY COMMITMENT TO ANY EMPLOYEE.” Nonetheless, the majority noted that the handbook also contained “an elaborate system governing employee discipline and discharge.” The tension between the promised procedure and the disclaimer created an ambiguity that should be resolved by a jury, it said. The terms spelled out in the book “are inconsistent with the disclaimer at the beginning of the manual, in effect sending mixed messages to employees,” the majority added. Dissenting, Chief Justice Jeffrey Amestoy countered that by finding ambiguity in Champion’s manual, the majority was issuing its own mixed message about the state of employment law in Vermont. He said that in a 1995 ruling, Ross v. Times Mirror, 665 A.2d 580, the court had warned against interpretations that conflict with the at-will doctrine, calling it “a private relationship.” Champion lawyer Eric E. Hudson, an associate in Burlington’s Sheehey Furlong & Behm, called the inconsistency “a real blow to the status of at-will employment in Vermont.” Dillon’s lawyer, Pietro Lynn, also of Burlington, asserted that the finding of ambiguity was consistent with state law. Dillon had sued the apparel maker after she was encouraged to take a more challenging position within the company and was then soon fired for not meeting expectations. She claimed that when encouraged to apply, she was told that it would take several months to get up to speed and that Champion would give her extensive training. Instead, Dillon got just four days of training and was removed from the slot without prior notice after two months. “In approaching this issue,” the majority said, “we are mindful at the outset that employment-at-will relationships have fallen into disfavor.” The court based its ruling, in part, on law review articles written by two out-of-state employment law professors. One, Columbia University’s Cynthia Estlund, authored the 1996 article “Wrongful Discharge Protections in an At-Will World,” 74 Tex. L. Rev. 1655. In it, she said, “the legal right to fire for bad reasons has been virtually decimated.” Estlund opined that Champion apparently failed to accord Dillon the procedures outlined in the handbook. “I think the message is you can’t raise employee expectations of fairness and then get yourself out of legal accountability.” She also said, “If you announce procedures, follow the procedures.” The other cited author, Ohio State University professor Deborah A. Ballam, in 2000, wrote “Employment-at-will: The Impending Death of a Doctrine,” 37 Am. Bus. L.J. 653. She said the Vermont court “made it clear that employers cannot take away a promise, the progressive discipline policy, with a disclaimer.” Vermont Law School professor Joan Vogel reacted with skepticism to the majority’s claim that the at-will doctrine is on its way out. She questioned whether the court was truly prepared to follow through on its proposition by treating handbooks as adhesion contracts between unequal parties.

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