Tag Archives: termination

Favorite Firing: Terminated for Lying About Leave

police-officer-clipart-black-and-white-nTXoX7MTBYears ago, I used to discuss employment cases I worked on with my kids at the dinner table. I didn’t use names, but I did describe the circumstances. “Don’t ever lie to your employer. You can get fired for lying,” I told them.

A recent court case from Ohio proves I’m still right. In Mattessich v. Weatherfield Township (Ohio Ct. App. Feb. 8, 2016), a police officer who had taken leave for depression was later terminated for lying about his medical leave. This is yet another “favorite firing” case involving law enforcement personnel.

The Facts: After Richard Mattessich, a police officer with the Weathersfield Township Police Department in Ohio, applied for a promotion to sergeant, he alleged that another applicant had been late to work. A video proved that Officer Mattessich’s allegations were false. The Chief of Police considered terminating Officer Mattessich at that time, but gave him a second chance. The Chief did require Officer Mattessich to undergo a psychiatric evaluation. A health care provider concluded that Mattessich needed sick leave, and he was off work for nine months.

Officer Mattessich passed a fitness-for-duty exam and returned to work. Nevertheless, others on the police force thought he lacked confidence and even seemed “dazed” and “out of it.” Officer Mattessich said he was fine and denied having any mental health counseling while on leave.

A few weeks later, his superiors learned that Officer Mattessich had in fact been treated for depression with counseling and medication. He admitted he had lied earlier about not receiving any treatment. Shortly thereafter, his employment was terminated for lying. The Chief of Police indicated that he could not trust a dishonest employee, because honesty and integrity were essential parts of the job for police officers.

Mattessich filed a disability discrimination lawsuit alleging that he had been discharged because of his mental health condition. The trial court granted summary judgment to the employer and dismissed the case, ruling that dishonesty—not disability—was the motivation behind the termination.

On February 8, 2016, the Ohio Court of Appeals upheld the termination. Although Mattessich’s “depression” was mentioned during the termination discussions, it was only mentioned because it was related to the plaintiff’s deception. There was no evidence that his mental health status was the cause of his terminaiton. Just because the employer knew about some mental health condition did not mean that any subsequent adverse decision was the result of discrimination.

The Court of Appeals found that the police department had provided a legitimate, nondiscriminatory reason for Officer Mattessich’s termination. It therefore became the plaintiff’s responsibility to prove that the reason was pretextual. The Court stated:

To establish pretext for a claim under the Civil Rights Act, “a plaintiff must demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Officer Mattessich failed to provide evidence to support pretext under any of these three categories.

One of the three judges on the Court of Appeals did dissent. She argued that the employer regarded Officer Mattessich as disabled and that there were questions of fact about the officer’s dishonesty that should have survived summary judgment.

The Moral: What I told my children is still good practice at work—do not lie to your employer.

This case involved law enforcement, where honesty is critical for the success of the police department’s work with the public and in courts. But honesty is critical in every employment relationship. Every employee owes his or her employer a duty of loyalty, which encompasses veracity. Every employer should have a policy prohibiting employees from lying to their supervisors.

And every employer should investigate allegations that an employee has lied—not only when the lies involve things as critical to the employment relationship as fitness for duty and leaves of absence.

Of course, communicating employment policies and consistency in applying those policies are critical. In this case, the Court of Appeals found that the Weathersfield Township Police Department had disciplined other officers caught committing acts of deception. So consistent application of the policy was important.

As noted above, there was a dissent in this case. These situations can go either way for the employer. The more the employer can distance the termination from the finding that the employee is disabled, and the more similar situations involving employees not in the same protected class as the discharged employee, the better the case is likely to go for the employer.

Involving Human Resources professionals and employment attorneys in these situations prior to discharging the employee is always a best practice.

But in this case, the biggest issue is that it took five years to get an appellate ruling that the employee could legitimately be discharged for dishonesty.

When have you had to deal with dishonesty in the workplace?

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Filed under Human Resources, Law, Uncategorized, Workplace

Favorite Firing: Termination for Admitting Violation of Employer Policy Is Retaliation Under FLSA

policeman-146561_640I’ve mentioned before that retaliatory discharge claims under Title VII are hard to defend, but retaliation claims are equally problematic under other employment statutes. In Avila v. Los Angeles Police Dep’t, (9th Cir. 2014), a police officer alleged he was fired for testifying in a co-worker’s lawsuit claiming non-payment of overtime wages in violation of the Fair Labor Standards Act.

The Facts: Leonard Avila was a police officer for the Los Angeles Police Department. He testified in another officer’s lawsuit alleging unpaid overtime wages and admitted he had frequently worked through his lunch break without reporting the extra hours, in violation of the LAPD’s policy.

Shortly thereafter, Officer Avila was discharged for insubordination. The insubordination? His failure to claim overtime wages in violation of department policy.

The LAPD Board of Rights that recommended Officer Avila’s termination found:

“Prior to 2008, you [Officer Avila], while on duty, were insubordinate to the department when you failed to submit requests for compensation for overtime that you had worked, as directed through department publications.”

The Ninth Circuit opinion states the facts as follows:

“Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

“Not coincidentally, that termination occurred only after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila then brought this action, claiming that he was fired in retaliation for testifying, in violation of the FLSA antiretaliation provision, 29 U.S.C. § 215(a)(3). The evidence at trial was that the only officers disciplined for not claiming overtime were those who testified against the LAPD in the Maciel suit, notwithstanding uncontested evidence that the practice was widespread in the LAPD.”

The Moral: As the dissenting opinion in Avila stated, “retaliation claims based on federal statutes are increasingly a major part of employment litigation in federal courts.” That is probably the single biggest moral to be taken from this case.

The dissent focused on the fact that Officer Avila and the other officers discharged after their testimony admitted violating department policy in that testimony:

“the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.” [emphasis in original]

The dissent argued that employees should not be immunized from the consequences of their admissions, but the majority upheld the jury verdict in favor of Officer Avila. The case focused primarily on jury instructions, and, finding no error in the instructions, the majority affirmed.

So another moral from this case is that employers cannot necessarily rely on admissions of wrongdoing by employees, if those admissions are made during lawsuits against their employer. Employers must be careful when seeking to discharge any employee who has raised any type of employment claim or participated in any way in another employee’s claim. As I’ve said before, the retaliation claims are often more difficult to defend than the underlying complaint, whether it be for illegal employment discrimination, unpaid wages, worker’s compensation, or any other employment action.

The Atkinson, Andelson, Loya, Ruud & Romo law firm, which represents employers, wrote on its blog:

“This decision is important as the Court of Appeals’ analysis suggests that an employer is restricted from exclusively using information obtained from an employee’s protected activity for purposes of initiating an adverse action.  Instead, the Court of Appeals focused on the fact that the City did not have other independent evidence of alleged wrongdoing beyond Avila’s protected activity when terminating his employment to avoid liability under the FLSA’s anti-retaliation provision. Ultimately, the Court of Appeals left open the question as to whether an employer is strictly forbidden from using any information of employee wrongdoing that is obtained during testimony in another lawsuit.”

And as Branigan Robertson, a plaintiff’s attorney, said on his blog:

“Avila v. Los Angeles Police Department is a win for employees as it shows employers that they need to be extremely careful when firing someone for complaining or being part of a legal proceeding against them.”

In my opinion, the LAPD would have been wiser to have documented a warning to Officer Avila and the others who admitted violating department policy and told them that any future violations would be grounds for termination.

Perhaps that shouldn’t be the case, but this was an expensive lesson for the department. Officer Avila received $50,000 in liquidated damages, and his attorneys were awarded $579,400 in attorney’s fees.

What do you think—should LAPD have lost this case?

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Filed under Human Resources, Law, Management

Favorite Firing: Discharged for Saying She’d Shoot Them All

gun-161223_1280I recently read an opinion in a case, Ames v. Ohio Department of Rehabilitation and Correction,  2014-Ohio-4774, that reaffirmed my belief that employers should control their workplaces. But even though the result was good, it took quite some time for the legal system to resolve the case.

This situation involves social media, which moves far faster than our legal system. Plaintiff’s first problematic Facebook post occurred in the fall of 2009, and the Ohio Court of Appeals didn’t rule until late October 2014.

The Facts: Plaintiff Diedree Ames was a Senior Parole Officer with the Ohio Department of Rehabilitation and Correction. She carried a gun as part of her job duties and supervised other parole officers. Ms. Ames had a history of interpersonal conflicts and erratic behavior. She had previously taken a leave of absence for mental health reasons.

In the fall of 2009, Ms. Ames posted during a chat session on Facebook: “I’ll gimp into work tomorrow. I guess I could just shoot them all…lol!” She continued in this vein, repeating these remarks again during the chat.

Her managers believed her statements violated the Department’s code of conduct, so she was placed on an administrative leave and ordered to undergo an independent medical evaluation (IME). She returned to work after the IME, though she did incur some discipline.

Later, plaintiff texted a coworker named Jill Brady on an employer-owned computer: “U and ur new gf r in a sh** [redaction mine] heap of trouble . . . u should know u will be tracked.”

Ms. Brady sought a protective order against plaintiff Ames, who was ordered to undergo another IME. Ms. Ames’s managers did not feel the second IME adequately addressed Ms. Ames’s propensity for violence, so they ordered a third IME. The third IME found no actual violence in plaintiff’s past, so no reason to believe Ms. Ames was dangerous.

While still on a medical leave, Ms. Ames wrote Ms. Brady again on a message board, “ . . . Feelin the heat yet? It’s coming. I promise. You f***ed [redaction mine] with the wrong person Brady, your ass is mine!”

After this third threatening post on social media, Ms. Ames was fired for violating the Department’s policy against threatening or intimidating another employee.

She then sued, alleging she had been discriminated against on the basis of a perceived disability. She claimed that because she was sent for three IMEs, the Department must have perceived her as having a mental disability.

Both parties filed motions for summary judgment. The trial court ruled in favor of the employer, but Ms. Ames appealed. On appeal, the Ohio Court of Appeals upheld the trial court, and the termination was determined to be lawful—on October 28, 2014, more than five years after Ms. Ames first sent the threatening Facebook post.

The Moral: It is still acceptable for employers to seek to maintain a peaceable workplace, free from violence by their employees. However, enforcing workplace rules against violence can be a difficult process.

In this case, the Court found that the three IMEs were not evidence that the Department perceived Ms. Ames as disabled. “The three IMEs were sought because ODRC believed that appellant had exhibited behavior that made her potentially dangerous or lethal in the workplace.”

The Court found that Ms. Ames was fired for specific conduct that took place after the third IME and could only be construed as a threat against her Ms. Brady. Moreover,

“Her termination came with a backdrop of a prior incident of posting an inappropriate message on social media, a history of ill will, charges and counter charges against Brady, and finally posting a vulgar, threatening statement toward a co-worker under her supervision.”

The question for other employers now is whether it will always take three IMEs and a lengthy history of inappropriate and threatening conduct before they can fire a wayward employee.

I would hope not.

Employers should continue to take all allegations of threats against their employees seriously. It only takes one employee attempting to make good on one threat to bring deadly violence into the workplace.

Like the Ohio Department of Rehabilitation and Corrections, all employers must insist that employees take responsibility for their words and actions, no matter how many lawsuits and appeals result. The safety of other employees may be at stake.

When have you had to deal with a workplace threat? What happened?

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Filed under Human Resources, Law, Management, Workplace

Favorite Firing: Trooper Fired After Sex With Victim

trooper10n-1-webHere’s a case where I completely agreed with the employer’s decision to fire a law enforcement officer. However, after five years of legal wrangling, a state trooper in Alaska won his case for back pay in front of the state’s Supreme Court.

Things still are wild and woolly in our Forty-Ninth State.

The Facts: In 2009, an Alaska state trooper (whose name has not been released to protect his privacy) was called to the scene of a domestic violence complaint. He and his fellow officers arrested the husband. Several hours later, the officer contacted the wife when he was off duty and had sex with her.

When the trooper’s superiors at the Alaska Department of Public Safety found out, he was suspended, and later fired.

The Public Safety Employees Union representing the trooper argued that he should not have been fired. An arbitrator agreed with the union, the state appealed, and the case wended its way through the state courts.

The Alaska Supreme Court, in a decision dated May 2, 2014, agreed with the trooper, his union, and the arbitrator. The majority of the justices, in a 3-2 decision, ruled that there was no “explicit, well-defined and dominant public policy in Alaska prohibiting reinstatement of a law enforcement officer who has engaged in off-duty consensual sexual misconduct.”

Doesn’t common sense count for anything in Alaska?

The two dissenting justices said the majority overlooked the gravity of the trooper’s misconduct, to wit: “Sex by a responding officer with a distraught domestic violence victim within hours of the alleged crime, likely leaving her in a more vulnerable position when the encounter came to light.”

The trooper will receive back pay as a result of the decision. He won’t, however, be reinstated, because he lost his police license in 2011 for some other reason. (Makes me wonder what that situation was.)

The Moral: The majority on the Alaska Supreme Court didn’t necessarily agree with the arbitrator, but they upheld the decision anyway. The majority said that “Engaging in sexual conduct with a victim shortly after responding to her call for help, even if consensual, is inappropriate behavior for a state trooper.” But because the Department of Public Safety hasn’t always punished cases of sexual misconduct by terminating the employee, the Supreme Court decided to defer to the arbitrator’s conclusion that the trooper should have been disciplined but not fired.

The two dissenters would have fired the trooper for his “serious and reprehensible” conduct, even if the Department of Public Safety didn’t have a specific sexual misconduct policy. Seems right to me.

So if you ever wonder why employers have “zero tolerance” policies and why they don’t seem to use any discretion when employees engage in misconduct, it’s because if they do use discretion, they might end up paying back pay to someone who clearly behaved inappropriately, and probably “screwed up” a law enforcement case.

Moreover, employers need to have those zero tolerance policies in writing. And follow them. That’s why employee handbooks grow to 100 pages or more, when the Ten Commandments fit on two stone tablets.

The reason employers don’t always seem to exercise common sense and sometimes seem to overreact is because they will be damned later if they don’t.

For more details on this case, see Supreme Court: Trooper shouldn’t have been fired for sex with domestic violence victim, by Michelle Theriault Boots, Anchorage Daily News, May 7, 2014.

What do you think? Should the trooper get back pay? 


Filed under Human Resources, Law, Management, Workplace

Favorite Firing: High-School Guidance Counselor Terminated for Writing Sexually Explicit Book

My recent posts in the “Favorite Firing” series have dealt with poor management decisions leading to terminations that are difficult to defend. (See here and here.) But “favorite firings” also arise when employees engage in behavior that leads to the immediate reaction “What was he (or she) thinking?” Today’s case is one of those.

teeth-dirty-old-man1In Craig v. Rich Township High School District 227 (7th Cir. 2013), a high school guidance counselor and coach published a book entitled It’s Her Fault, in which he wrote about his own sexual exploits and argued that women should be submissive and should use sex to get power in relationships.

Not surprisingly, the School District did not look favorably on this book by a man who provided guidance counseling services to students of both genders and coached young female basketball players. They fired Mr. Craig. He sued, claiming that he was fired in retaliation for publishing this book in violation of his First Amendment right of free speech. Thankfully, he lost his case, when first the trial court and then the Seventh Circuit dismissed his claims.

The Facts: Because the case was dismissed out of hand, there were no factual disputes. Mr. Craig published a book that was sexually explicit. According to the Seventh Circuit, the book repeatedly discussed sexually provocative themes and used sexually explicit terminology. Not only was it explicit in describing sexual anatomy and recommending certain practices, it also advocated that women should be submissive to men and should paradoxically use sex to secure power in relationships.

Furthermore, Mr. Craig admitted in his book that he objectified women in his own relationships, while stating that women were too emotional and unable to develop strong relationships. What young woman who read of these opinions by Mr. Craig—or of his “weakness for cleavage”—would want him as her guidance counselor or coach? Too icky.

The School District admittedly fired him because of the book and because they believed he was not an appropriate counselor for high-school children. The charges against Mr. Craig included that:

(1) the publication of Craig’s book  “ha[d]  caused disruption,  concern, distrust and confusion among members of the School District  community;” (2) Craig violated the School Board’s Policy  “prohibit[ing]  conduct that  creates ‘an intimidating, hostile,  or  offensive  educational  environment;”  and (3) “Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations  as  a public teacher.

Mr. Craig claimed that his book was protected by First Amendment rights and that the School District had fired him wrongfully.

The Moral: The trial court dismissed the case, stating that Mr. Craig’s book was not a matter of public concern, and therefore was not protected by the First Amendment. The Seventh Circuit affirmed the dismissal, but used different reasoning. The Seventh Circuit said that the book was of public concern, because it dealt with “adult relationship dynamics.”

However, the Seventh Circuit agreed with the result in the trial court, holding that the School District had the right to fire Mr. Craig because of its interest in providing educational and counseling services in an unintimidating and non-sexualized atmosphere. Mr. Craig’s authoring and publishing of his book prevented him from teaching and counseling in the non-threatening environment the school wanted to create.

At the heart of the Seventh Circuit’s opinion is the language:

The school district reasonably predicted that “It’s Her Fault” would disrupt the learning environment at Craig’s school because some students, both female and male, who learned of the book’s hypersexualized content would be reluctant to seek out Craig’s advice.

It is a relief to find that the Seventh Circuit upheld the School District’s right to set the tone of its educational environment. In truth, the holding of the Seventh Circuit was stronger than the lower court’s holding. The lower court based its ruling on the specifics of Mr. Craig’s book, while the Seventh Circuit affirmed the School District’s ability to prescribe how its students are taught.

The Seventh Circuit did place limits on the School District. The court stated that it was balancing the School District’s interest in offering public education and counseling services in a non-sexual climate against Mr. Craig’s right to express himself. I would hope, however, that in future cases, school districts would be given broad abilities to structure their educational environments in ways they think most conducive to learning.

For another commentary on this case, see Paul Porvaznik’s article, 7th Circuit Dismisses Guidance Counselor’s First Amendment Suit Involving Tawdry Relationship Book (the ‘actually, please DO quit your day job’ post).

For a complete list of my “Favorite Firing” posts, click here.

What do you think of the Seventh Circuit’s opinion in this case?


Filed under Human Resources, Law, Management, Workplace

Favorite Firing: Fired After Being Told She Was “Not That Pretty”

MP900321176Back in January, I wrote about a woman who said she was fired because she was “too attractive.” This week, my “favorite firing” story is about a woman who claims she was fired after being told she was “not that pretty.”

In this day and age, managers should know better. In a landmark case from 1989, Price-Waterhouse v. Hopkins, the U.S. Supreme Court ruled in favor of a female accountant who was told she was too much like a man.  The Supreme Court permitted the use of evidence of sexual stereotyping to find sex discrimination in the Hopkins case. Now, almost a quarter century later, we have the case of Tober-Purze v. City of Evanston, an Illinois case in which a female attorney was told she wasn’t pretty enough.

[Kudos to HR Morning for raising this issue. See Psst: Telling female employee she’s ‘not that pretty’ isn’t a great management move, by Tim Gould, on HR Morning, August 29, 2013.]

The Facts: Elke Tober-Purze was an attorney working in the law department of the City of Evanston, Illinois. On August 21, 2013, the District Court overruled most of Evanston’s motion to dismiss. Because the only reported opinion in the case is on a motion to dismiss, we are early in determining the facts of the case. On a motion to dismiss, the plaintiff’s statement of facts is accepted as true, though it might be disproven during litigation.

In this case, Ms. Tober-Purze alleges that she was discriminated on the basis of her sex and her age, that she was not treated fairly in the calculation of vacation and sick pay accruals under Illinois law, and that she was unlawfully terminated in retaliation for pursuing the state law pay claims. The District Court only dismissed her state law retaliation claim; she was allowed to pursue the other claims.

For purposes of this post, I am only going to focus on her allegations of sex discrimination. It is very easy to plead a claim of sex discrimination. In a nutshell, the plaintiff only needs to allege that a bad act happened that did not happen to people of the opposite sex in similar circumstances.

Ms. Tober-Purze alleges that she was paid less than male attorneys and did not receive temporary duty pay, as males did. In addition, she alleges that her supervisors made the following comments:

  • that she was “not that pretty”, and that other attorneys hired by the City were “smart . . . good-looking. . . just gorgeous . . . [and wore] tight sweaters . . . short skirts. . . .”
  • that a superior told her and other female attorneys that “it’s been all downhill since women got the vote”
  • that she and other women needed to get rid of magazines about female attorneys.

It should be noted that Ms. Tober-Purze also alleges that she was denied a pre-notice and pre-termination hearing.

Again, we don’t know what facts will be proven in this case. However, it is incredible that stories about comments on a woman’s appearance still surface in the workplace, almost fifty years after passage of Title VII in the Civil Rights Act of 1964, and almost a quarter century after the Hopkins case.

The Moral: The moral in this case is simple—Managers should not be stupid. They should not make demeaning remarks about employees based on race or sex or age or any other protected category.

And a corollary is that managers should follow their own internal policies and procedures. Where the employer’s policy calls for internal dispute mechanisms, it is almost invariably better to use those procedures. Use of internal ADR procedures may delay the company’s resolution of a performance issue, but it is also likely to surface issues such as unfortunate remarks by managers. If an employee doesn’t raise the potentially discriminatory remarks during the internal ADR procedures, the company is better positioned if a lawsuit later results.

When have you been involved in a situation where managers have been stupid? Would ADR have helped resolve the issue?


Filed under Diversity, Human Resources, Law, Management, Mediation, Workplace

How To Conduct a Layoff – Go Beyond the Basics

MP900341467One of the regular features of this blog is a series of posts about “favorite firings” – situations when an employee has been fired that are unique, because either the employee or the company (or its manager) has done something questionable. But what about situations when an employer needs to fire multiple employees? Whether because of a business downturn or a reorganization, there are occasions when even good employees cannot be retained.

Many Human Resources managers have to work with line management to design the new organization, slot existing employees into the new roles in the organization, and determine how to transfer or lay off employees who do not fit the new roles. This is not an easy part of the HR function, and it is fraught with legal and employee relations risks.

I worked on several reorganizations during my corporate career, both as an employment law attorney and as a HR director. Layoffs, or reductions in force (RIFs), are also a large topic in my novel in progress, Playing the Game (which I hope to publish this fall).

As a result of my past and present involvement in RIFs, I was interested in the recent Inc. article, Lay-Offs: This Is Exactly What You Don’t Want to Do, by Francesca Fenzi.  Ms. Fenzi gives the following broad tips for how to terminate employees during a layoff:

(1) Do it face-to-face.

(2) Rally the (remaining) troops.

(3) Go the extra mile.

These pointers are correct, as far as they go, and Ms. Fenzi’s article is worth reading. But whole books – “how-to” books, not novels – could be written on each of these three tips, and much is left unsaid in each simple statement.

Face-to-face = RESPECT.  It is critical that the fired employees believe the organization values their past work and is treating them as humanely as possible. Before the employer can authentically show respect for terminated employees, managers and HR need to have done a thorough job in determining that there is in fact no role for each individual who must be let go. And they need to be sure that the reorganization has not been implemented in a manner that adversely impacts a particular racial, gender, age, or other protected group. Only when the leg-work is done ahead of the RIF can the fired employees feel they were given a fair shake.

Rally the remaining troops = CHANGE MANAGEMENT.  This is about the morale of the workforce going forward and change management. Not only must the departing employees feel they have been treated as fairly as possible, but the remaining employees must feel that way also. Those who are left behind – the “survivors” –also must understand their new roles in the organization, believe they have the training and ability to do the job, and not feel overwhelmed by the change. Managers and HR need to re-engage the remaining employees in their work.

Go the extra mile = LEADERSHIP.  This is about communication and leadership. The old adage “communicate, communicate, communicate” applies at every step after a layoff is announced. There is a time for confidentiality before the decisions are final, but once the RIF is public, leaders must step up and own it – this includes leaders at all levels of the organization – from the C-suite to middle managers to front-line supervisors. Each level of management must be equipped to communicate to their reports, until they feel they are over-communicating, and then communicate patiently again. All leaders need to visibly support the organization, so that their employees will buy into the future. HR should drive that process.

For good overviews of the details in conducting a reduction in force, read articles such as:

Layoffs, Downsizing & Reductions in Force: How to Do Them Right, by Greg S. Labate, on the Labor & Employment Law Blog

QuickCounsel: Planning and Conducting a Reduction in Force, by Scott T. Baken and Penny Ann Lieberman, Jackson Lewis LLP, on the Association of Corporate Counsel (ACC) website

Tips for Planning Reductions in Force – Michael L. Rosen, Foley Hoag LLP (ebook)

And talk to your own employment law advisor early in in the process.

What experience have you had as a manager in conducting layoffs? What do you wish you had known before you started?

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Filed under Employee Engagement, Human Resources, Law, Leadership, Management, Workplace, Writing

Favorite Firing: Can an Employee Be Fired for Calling Someone “a Little B!+$#” ?

MP900444810A new case in Kentucky raises interesting questions about the differences between public and private employers. The Kentucky case involves a bus driver who worked for a school district. The bus driver claims she was fired in violation of the First and Fourteenth Amendments of the U.S. Constitution because of something she said on Facebook. As a public employer, the school district is subject to constitutional limits on how it deals with its employees.

Employees of private employees cannot claim the protection of the First and Fourteenth Amendments. But the myriad of federal and state laws might still permit an employee to sue if a private employer fired the employee in similar circumstances.

All employers should re-assess their social media policies, given recent developments in state legislatures and in the National Labor Relations Board (NLRB).

The Facts: Debora Robinson had been a school bus driver for the Grayson County Board of Education in Kentucky for many years. Robinson sent a private Facebook message to a female student in the Grayson County school district. In this message, Robinson told the student not to bully Robinson’s son.

Further Facebook messages were exchanged between Robinson and the girl, in which both used profanity. In one of the later messages, Robinson referred to the student as “you little bitch.” When the school district learned that Robinson had called the student a “little bitch,” she was fired.

Robinson then sued in the U.S. District Court for the District of Kentucky, claiming that her message had nothing to do with her employment, because she was “off the clock” when she sent it, she used her own computer, and the student had never been a rider on her bus. She alleged that her termination violated her freedom of speech rights under the First Amendment of the U.S. Constitution, her equal protection and due process rights under the Fourteenth Amendment, and also violated similar provisions in the Kentucky Constitution.

The school district told Robinson she was fired for violating school board policy. Robinson’s lawsuit claims there was no written social media policy, nor any guidelines telling employees what they could and could not say in social media communications with students.

This lawsuit was just filed on January 8, 2013, so we don’t know yet how it will turn out. (Quite possibly, the case will settle, and we won’t ever know the outcome.)

But the case raises cautions for all employers – public and private.

The Moral: Employers might be damned if they do and damned if they don’t in these situations.

If Robinson hadn’t been fired, might the student have sued the school district for permitting its employee to harass her? As far as  I know, the student didn’t sue, but such a lawsuit is quite plausible. After all, an employer might well be found to be liable if one employee sends sexually suggestive messages to another employee, and the employer does nothing to stop the harassment. Why wouldn’t a school district be found liable for the conduct of its employee toward a student?

But there are many pitfalls for employers to watch for as they seek to contain employees’ conduct toward others.

Constitution: The Constitutional theories Robinson raises in her complaint apply to all federal government employees, as well as to state and local government employees through the Fourteenth Amendment.

These government employees have protected property rights in their jobs, which governments cannot take away without due process. Due process requires notice and a hearing. If an employee does not have notice of what might be grounds for dismissal, the employee can attack his or her dismissal or other disciplinary actions as unconstitutional.

Even though employees of private companies have no constitutional protections at work, there are many other grounds for private employees to sue in situations similar to Ms. Robinson’s.

Federal Law. First, there are federal nondiscrimination statutes such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Private employers can have policies that say an employee may not use profanity on or off the job, so long as that policy is enforced in a non-discriminatory fashion. However, if only minorities or women or foreign nationals are fired for violating the policy, then the terminated employees have good claims for employment discrimination.

State Law. Many state laws also protect employees from dismissal unless their conduct is job-related.  For example, in California, Labor Code Section 96(k) provides that employees may not be disciplined for lawful conduct during non-work time away from the workplace. Some other states have similar laws. Laws in this area vary widely state by state, and each state has different nuances and interpretations in its statutes.

NLRB.  Recent developments at the National Labor Relations Board attempt to limit how even non-union employers can discipline employees for off-work behavior, including their use of social media.

For all these reasons, both public and private employers should have clear policies on employees’ conduct away from the workplace, including use of social media and other communications tools.

Most employees today have access to email and social media tools, which they may well use to communicate with other employees and with customers and members of the public they encounter during their work days.

Employers are only one text message or Twitter or Facebook post away from potential liability for what their employees do; they should be clear on their expectations for how employees communicate in ways that might impact the workplace.

Employers should involve experienced Human Resources staff and employment attorneys in the drafting and review of these policies. It is important to be sure the employer is not overreaching under the state and local laws where the employer is located.

Meanwhile, we will watch to see whether the Robinson case determines whether employees in Kentucky can call someone a “little bitch” with impunity.

How far do you think employers should be able to control their employees’ conduct? Does it make a difference whether the person complaining is a customer or user of the employer’s services (as the student was in the Robinson case?)

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Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.


Filed under Human Resources, Law, Management

Favorite Firings Series: Too Attractive To Work Here

A recent decision by the Iowa Supreme Court has employment lawyers shaking their heads.  In Iowa, it is now perfectly lawful to fire an employee for being too attractive.  In Nelson v. Knight, the Iowa Supreme Court held that a dentist did not improperly discriminate against his dental assistant because of her sex when he fired her because his wife was concerned about his relationship with the dental assistant.

MP900185168The Facts:  Melissa Nelson had worked as a dental assistant for dentist James Knight for more than ten years. She was a good employee, and she said he was generally a respectful employer. But sometimes Dr. Knight told Ms. Nelson her clothing was revealing and “distracting,” and he had commented on it to her. They texted each other on personal matters. Dr. Knight’s wife found out about the texts, and demanded he fire Ms. Nelson. They consulted their pastor, who also thought it would be a good idea if Ms. Nelson were fired. So Dr. Knight fired her, and replaced her with another female dental assistant. Dr. Knight said Ms. Nelson had not done anything inappropriate, but he was worried about engaging in an affair with her in the future.

The Iowa Supreme Court found that Dr. Knight had not fired Ms. Nelson because she is female, but because he perceived there was a threat to his marriage, and the Court cited several cases from the federal Eighth Circuit Court of Appeals.  As the Iowa court framed the question, it was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.” The Court answered that termination of employment in this situation was not illegal.

The Moral: It is important to note that, as the Iowa Supreme Court said,

“Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

We may disagree with what Dr. Knight did in this case. We may think it was unfair to Ms. Nelson. But that does not make it illegal. But, as one commentator said, “Just because an employer can do something does not mean it should.”

The Court did leave open the possibility that if Dr. Knight had fired many women for the same reason, the result might have been different.

“If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.”

But where the employer only fired one woman because of the potential of a personal relationship, and hired another woman to replace her, the Court found there was no discrimination.

One fact that was not discussed in this case that I think is relevant is the size of Dr. Knight’s dental office.  Most dental offices I’ve been in are quite small – two or three dentists, and a handful of assistants and office staff. They are the epitome of a Main Street small business. Should Dr. Knight have more ability to dictate who works for him than a supervisor in a multi-national company has?

Keep in mind that this case was decided under Iowa law. The result might be different in a federal court or in another state.

What do you think? Was this decision correct or wrongheaded? What would you have done, if you were Dr. Knight? Or his wife?

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Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.


Filed under Diversity, Human Resources, Law, Management, Workplace

Favorite Firings – Next in the Series: Fired for Donating an Organ

Would you donate a kidney to your brother?

Here’s a recent Missouri case that makes me wonder “what was this employer thinking?” I don’t think all terminations resulting from an employee’s medical issue are against public policy. But in most cases, showing a little compassion is the right thing for an employer to do. Managers should think long and hard before firing an employee with a serious medical situation.

The Facts: In Delaney v. Signature Health Care Foundation, No. 97419, 2012 LEXIS 694 (Mo. App. E.D., May 22, 2012), Norton, J., the Missouri Court of Appeals decided that Phyllis Delaney had been wrongfully terminated for taking time off to donate a kidney to her brother.

Ms. Delaney worked for Signature Health Care Foundation as a data entry clerk. When her brother needed a kidney transplant and she was a match to provide him with a kidney, Ms. Delaney told her employer that she would be off work for four weeks. According to Ms. Delaney’s allegations, Signature Health first approved her absence, then changed its mind three days before surgery and fired her.

Missouri is an employment-at-will state, which means that an employer can fire an employee for any reason, or for no reason, but not for an illegal reason. Missouri recognizes a “public policy” exception to the employment-at-will doctrine – an employer may not fire an employee for a reason that is contrary to well-established public policy in the state. Specifically, the Court of Appeals in Delaney said:

“Missouri Courts have recognized four categories of the public policy exception to the at-will-employment doctrine. Specifically, an employee has a cause of action when he or she has been discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy; (3) acting in a manner public policy would encourage; or (4) filing a claim for worker’s compensation. Hughes v. Bodine Aluminum, Inc., 328 S.W.3d 353, 356 (Mo.App.E.D.2010).” 

In her lawsuit, Ms. Delaney claimed that Signature Health had wrongfully terminated her employment in violation of Missouri’s public policy encouraging organ donation. Signature Health won a dismissal of the lawsuit in the lower court, but the Missouri Court of Appeals reversed.

Based on a review of several Missouri statutes, the Court of Appeals held that Missouri public policy does encourage organ donation. Therefore, firing an employee because he or she is an organ donor gives the employee a claim under the public policy exception to Missouri’s employment-at-will doctrine. Ms. Delaney deserves her day in court, according to the Court of Appeals, and she will now have an opportunity to prove that in fact she was discharged because she had decided to donate the kidney to her brother.

The Moral: Before managers decide to fire an employee, they should take a step back and think about how the termination would look to an outsider. I always told managers to ask themselves how the case would look in the newspaper, or if they were telling their mother about the situation. If you don’t want to explain yourself to the public or to your relatives, then the termination is probably not a good idea.

In this case, would any rational manager want to explain that they fired a woman because she was going to give her brother a kidney?

In addition, managers should consider whether there are any statutes or regulations that might support a public policy claim like in the Delaney case. If there is any question, talk to an attorney who specializes in employment law.

Ms. Delaney has not yet won her case. It might be that the employee’s absence in this case would truly cause the employer a hardship, and the employer might be able to prove that public policy does not require them to endure the hardship to support her organ donation. But Signature Health had better be able to prove some defense that overcomes the policy in favor of organ donation at trial. Could they not have hired a temporary data entry clerk for the work that Ms. Delaney would miss for four weeks?

In my opinion, they are facing an uphill battle in the court of law and in the court of public opinion. What do you think about this situation?

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I’m still soliciting ideas for stories on workplace terminations to publish. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story. I will only publish verified stories.

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Filed under Human Resources, Law