THE COUNSELOR=S CORNER

A promise is a promise. Those famous words were spoken by the King of Siam to The Julie Andrews character in AThe King and I.@ Ms. Andrews= character had come to Siam in her capacity as an educator (they were called teachers back then) to instruct the children of Siam. Later in the musical, a discussion takes place as to whether or not the King of Siam will build the teacher a home which was part of her original deal and the King, played by the inimitable Yul Brunner uttered the previously mentioned quote.

Similarly, it is nice to see that the Fourth District Court of Appeal is upholding a promise in an employer/employee debate. This is the matter of Lynn Agosta who was working as an Account Executive at Clear Channel Communications when he was enticed to come to work for the Astor Broadcast Group. The enticement of Mr. Agosta was done quite artfully as he was offered a $6,000 a month salary along with a 2.5 % managerial commission and 1 % equity in the station! These terms represented the final negotiations as the initial offer to Mr. Agosta was for far less. Mr. Agosta was hired as a General Sales Manager, a title with a great deal more cache than the title of Account Executive.

Now, to the good part. His employment contract had an at-will provision. An at-will provision generally has been construed to permit employers to discharge employees at-will, in other words, at their pleasure.

Less than a week after he began working, Mr. Agosta was told that along with being a General Sales Manager, but he would have to act as an Account Executive as well. Shortly thereafter Mr. Astor told Mr. Agosta that he was going to withdraw the financial agreement and rework one much more to his liking. The end came three weeks into Mr. Agosta=s employment at which time Mr. Astor sent Mr. Agosta an email telling him that he was fired.

Needless to say, this did not sit well with Mr. Agosta who had given up quite a lot to come to Mr. Astor=s radio network. Mr. Agosta then sued and the case was thrown out as the court held that as Mr. Agosta was an at-will employee, he could be fired at anytime and for any reason, or no reason at all. The good news here is that this was reversed by the Appellate Court which stated that one who hires and then fires an employee under these circumstances can be liable for fraud. The Appellate Court ruled that the case should have not have been dismissed merely because of the at-will provision. As stated perfectly by presiding Justice Judith McConnell, Aan at-will employer does not have carte blanche to lie to an employee about any matter whatsoever to trick him or her into accepting employment.@ The Appellate Court decided that Mr. Agosta could properly sue for Athe loss of security and income associated with his former employment.@

This means that Mr. Agosta=s lawsuit is alive and well. His attorney thinks it will send a message to employers that an at-will contract is not quite what it used to be. His hope is that this ruling will lead employers to treat their employees more fairly.

I like this ruling. I don=t like it when people are induced to leave their jobs by promises that the person making the promises is planning to take back. I don=t think anyone would dispute the fact that Mr. Agosta had a pretty good job with Clear Channel. He traded in his $150,000 salary for a salary half as great but with the managerial commission and the equity, he had the opportunity to make a whole lot more. Suddenly, once Mr. Agosta left Clear Channel and was working for Mr. Astor, the rug was pulled out from under him. Mr. Astor felt he held all the cards due to the at-will clause he cleverly included in the agreement. It is nice to see that the Appellate Court decided this was not how it should be.

Mr. Astor is considering taking this case to the Supreme Court of the State of California; however, I would like to think if he does so, he will lose again. You just can=t take someone from his job and then change the rules on him once he gets there. As Mr. Astor owns a radio network, I assume he has been a successful business man, however, I am glad to see that the Fourth District Court has given him his comeuppance.