Chp 18 Terminations

What NOT to do

A company told its employees that managers would be walking through the office. Any worker tapped on the shoulder by a strolling manager was gone. And if you think that was insensitive, one manager dismissed an employee via Facebook!

Was he constructively discharged?

A long-time employee received a negative performance appraisal after some other employees and a customer had complained about him. The employee was presented with the choice of either retiring with a severance package or being evaluated under a 30-day performance improvement plan. The plan would include an assessment of his performance, leadership, support for peers and managers, teamwork, and customer satisfaction. He was also told that if his supervisor received even one complaint about him during this 30-day period, he would be terminated without severance pay. The employee was given 30 days to consider the offer. After 25 days, he took the severance package. Subsequently, the employee sued his former employer for wrongful termination. Saville v. IBM, 2006 U.S. App. LEXIS 15839 (10th Cir.); cert. denied, 127 S. Ct. 1143 (2007) Saville v. IBM, 2006 U.S. App. LEXIS 15839 (10th Cir.); cert. denied, 127 S. Ct. 1143 [2007]) The appeals court affirmed the lower court's grant of summary judgment to the employer. Under the circumstances, the choice of resigning or being placed on a performance improvement plan did not render the quit an involuntary termination. In the court's words, "[t]he inquiry is not whether the conditions at IBM were "difficult or unpleasant," but whether, at the time of Saville's retirement, IBM did not allow him "the opportunity to make a free choice regarding his employment relationship." Other courts have held "that criticism in performance reviews and institution of performance improvement plans, alone, do not constitute objectively intolerable conditions." We agree. Furthermore, we have previously indicated that an employer's offer of an alternative to quitting is not consistent with constructive discharge. Saville could have remained at IBM and undertaken the performance improvement plan. Indeed, Saville testified at deposition that he had placed at least six subordinates on ninety-day improvement plans and they all succeeded, although some "fell off" afterward. Finally, Saville was given thirty days in which to consider remaining with IBM and was verbally notified of the criteria under which he would be judged if he elected to remain. The totality of the circumstances indicates, as a matter of law, that Saville's retirement was voluntary."

Why jurors fire back during wrongful termination lawsuits?

A recent experiment by the American Bar Association staged a mock ADA discrimination trial, in which the evidence was stacked heavily in the employer's favor. After the jury retired, the judge announced that, were this a real trial, he would have thrown out the case because no reasonable jury could find for the plaintiff. The jury concluded that the employer did not treat the plaintiff "fairly" - a consideration that was legally irrelevant - and recommended a multimillion dollar damage award. CONCLUSIONS Jurors can and do believe that some employees deserve to be fired. However, no matter how well deserved the termination, NO employee deserves to be humiliated or embarrassed in the process. In other words, it's not the legal facts of the case that carry the most weight with the employee/juror; it's the lack of interpersonal skills exhibited by the manager.

What should the court decide

A store employee observed a woman being physically assaulted across the street from the store. The employee grabbed a baseball bat that was kept under the check-out counter, ran outside, and succeeded in scaring off the attacker. The employee was terminated for violating store policy by leaving the workplace to assist the woman. The termination letter referred to the employee leaving his work station while still on company time, involving himself in a situation that was "none of our business," and exposing the store to potential liability. The employee sued. (Little v. aDiscount Beer & Tobacco, 2007 Tenn. App. LEXIS 242)).

Just cause/due process

A stronger standard than "employment at will with exceptions". Employers bear the burden of showing that they had good reasons for their termination decisions and followed reasonable procedures. Applies to about 20% of the U.S. workforce Generally covers employees who are: Represented by a union Work for government agencies Reside in Montana Have contracts of employment requiring just cause, or Returning from USERRA-protected leave

Congratulations! You've been fired

At HubSpot, when you get fired, it's called "graduation." The boss sends an email to all employees saying "Team, just letting you know that X has graduated and we're all excited to see how she uses her superpowers in her next big adventure." The author describes the company as, "Imagine a frat house mixed with a kindergarten mixed with Scientology" She adds, "There is no need for work-life balance because work is life and life is work."

Impressionable grounds for termination

Breach of an implied contract Retaliation in violation of public policy Discriminatory or retaliatory termination In violation of constitutional rights See Table 18.1

Determining Whether a Termination has occurred--- Constructive Discharge

Disputes over whether an employee quit or was fired are common. If the resignation was truly voluntary, he/she cannot sue for wrongful termination.

#6

Don't be a hypocrite. A division within a FORTUNE 500 company issued a memo that encouraged employees to increase their global competitiveness by taking foreign-language instruction during the workday. Six months later all those who had availed themselves of the offer were fired. Management had apparently concluded that anyone who had the time to take a course during business hours was obviously underemployed.

#3

Don't fire en masse. As part of a sales agreement, the original owners of a medical collection agency were instructed to cut half of its staff. The 1,000 employees were assembled in the company parking lot and the names of the 500 to be laid off were read aloud. The original owners then told the remaining employees they were lucky they still had jobs, but their medical insurance had been terminated.

#4

Don't rely on electronic hints to do your dirty work. A reporter discovered he had been laid off when he tried to pay for dinner with a prospect by using his corporate credit card and found it had been canceled.

#2

Don't use the mailman as your messenger. A woman returned from a business trip. Surrounded by her welcoming family, she began to open her accumulated mail...and there found her termination notice.

What NOT to do #1

Don't use your employees as pawns in a corporate chess game. A supervisor called a meeting with his waitresses to say that someone was stealing from the restaurant. In order to establish the identity of the thief, he told the assembled women, he would begin firing them, one by one, in alphabetical order, until someone 'fessed' up. The company was found guilty of intentional infliction of emotional distress.

The Montana wrongful discharge from employment act (WDEA)

Eliminated employment at will in Montana. Provides that a discharge is wrongful if: It was in retaliation for an employee's refusal to violate public policy or for reporting a violation of public policy. The discharge was not for good cause, and the employee had completed the employer's probationary period. The employer violated the express provisions of its own written personnel policies.

Defense to claim of discriminatory termination

Employer must articulate a legitimate nondiscriminatory reason for the termination. If the employer articulates a legitimate nondiscriminatory reason, plaintiff must prove that the araticulated reason is merely a pretext for a decision motivated by discrimination.

Jurors are also getting even

In one case, a jury awarded $2.8 million to a longtime employee who was fired because "the chemistry was wrong." It's not unusual for a company to pay $50,000 or more in defense costs.

Deadliest woman shooter and bloodiest postal shooting in 20 years

January 30, 2006 GOLETA, CA -- Seven people were killed in one of the deadliest postal shootings in two decades.The Santa Barbara County Sheriff's Department says former U.S. Postal Service employee Jennifer San Marco killed six people before turning the gun on herself.

Off duty conduct laws

Most employees believe that their personal lives off the job are none of their employer's business, and should not affect their employment status. This view is not shared by employers. About half of the states have off-duty conduct laws protecting an employee's autonomy off the job, but these are generally limited to protecting employees' off-duty use of tobacco and other lawful products.

Four kinds of public policy exception are recognized

Termination for: Refusing to commit an illegal act Exercising a legal right Performing a public duty Reporting illegal activity (i.e., whistleblowing). Discuss Dorshkind v. Oak Park Place of Dubuque II Rule: Employers must not terminate employees for refusing to commit an illegal act, exercising a legal right, performing an important public duty, or reporting illegal activities of employers and their agents.

Terminating an Employee

Terminations are more likely than any other human resource action to result in legal claims. For an employee, the loss of a job can be life-altering, affecting his ability to care for himself and his family, damaging career prospects, and damaging self-esteem. For an employer, the undertaking is stressful, sometimes dangerous, and apt to prompt legal actions.

Public policy exception to employment at will

Under this exception, employers are liable in tort for wrongful discharge when they terminate employees for taking actions that public policy requires or encourages. This type of wrongful discharge claim is recognized in over 40 states. Allowing the terminations to stand would offend and undermine public policy. A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages

Handling terminations

"This is what you get for firing me." These were the last words that 3 former coworkers of Paul Calden would ever hear. Fired 9 months earlier from an insurance company in Tampa, Florida, Calden returned to the cafeteria of his former employer and began shooting. Within minutes, 5 people were wounded, 3 of whom died. Handling Terminations Employers should consider alternatives to termination, including retraining, transferring, demoting, suspending, and signing last-chance agreements. The option of resignation is best pursued when there are growing concerns about the performance or conduct of an employee, but a termination is not yet imminent. Resignations should be documented in writing and stipulate the voluntary nature of the resignation. Employees should be placed on administrative leave if circumstances warrant their removal prior to completion of an investigation or proper review of a termination decision. The reasons for termination decisions and the process followed should be solidly documented. These materials should be in writing, should be produced prior to the termination decision, and should support the decision to terminate. Employers should provide employees with a clear and succinct statement of the reason(s) for their termination. Employers should generally avoid making public statements about terminated employees and the reason for their termination. Discharges should be handled in a reasonable, dignified manner. Unless there are compelling security concerns, terminated employees should be allowed a reasonable amount of time to clear out their offices and take care of other business, rather than be ushered out of the workplace. Final wages should be paid quickly and within any period provided for under state law.

In the news

Chicago, Aug. 27, 2003 -- A disgruntled former employee shot to death six former co-workers before being gunned down by police. The man, Salvador Tapia, 36, of Chicago was fired because of tardiness and poor performance. On December 19, 1996, Charles Jennings, a fired mail handler, shot and killed a supervisor who had testified against Jennings in an arbitration hearing . Dallas, March 20, 2000 - A 28-year-old fired employee shot 5 people to death at a car wash in the Dallas, Texas area. On September 15, 1997, a fired employee of the Aikens part plant went on a shooting spree; 4 people died and 3 were injured. Richmond (California), April 27, 1995 - A Housing Authority employee shot and killed a supervisor and a coworker after being fired from his job. On May 18, 1995, a 47-year old just fired from his job at a machine tool company returned the next day with a rifle and a pistol killing three workers and wounding four others. Los Angeles, July 19, 1995 - An Los Angeles City electrician shot and killed four of his supervisors when he learned he was facing possible dismissal for poor work performance. Evandale (Ohio), December 15, 1995 - Gerald Clemons shot and killed three employees wounding a fourth after being recently fired by Trans-Continental Systems.

Unionized employees

Collective bargaining agreements limit discipline and discharge to situations in which there is "just cause." Grievance and arbitration procedures are used to challenge and resolve discipline and discharge decisions. Arbitrators Determine whether unionized employees have been terminated for just cause rather than courts. Typically given broad authority. May overturn or modify discipline or discharge. The legal status of unionized employees derives from language in labor agreements that limits discipline and discharge to situations in which there is "just cause." Almost all labor agreements include grievance and arbitration procedures to challenge discipline and discharge decisions. Arbitration Determinations as to whether unionized employees have been terminated for just cause are made by arbitrators rather than courts. Arbitrators are typically given broad authority. If an arbitrator decides that a discharge was not for just cause, he/she can overturn the decision or modify it.

Public employee's rights regarding free speech

Constitutional protection of free speech is afforded only to a public employee who is speaking as a citizen on matters of public concern, and not as an employee. Public employers must respect the constitutional rights of their employees to freedoms of religion, speech, and association. Termination or other disciplinary action should be imposed only when the exercise of these rights clearly interferes with an employee's ability to do his job or with accomplishment of the public agency's mission. Discuss Lane v. Franks

Factors considered by courts to determine whether an employee was constructively discharged:

Demotions Cuts in salary Choice of termination or resignation Reassignment to menial or degrading work Reassignment to work under a younger supervisor Badgering, harassment, and humiliation calculated to encourage resignation Offers of early retirement on terms less favorable than the employee's former status

Why are fired employees firing back?

Dismissals or terminations do not provoke violence in and of themselves. Rather, vengeful attitudes and behaviors are a result of the wounded pride and humiliation that occurs when such actions are conducted in an abusive and insensitive manner. For example, Schweiger, Ivancevich and Power (1987, p. 130) reported "it was not the terminations per se that created . . . bitterness, but the manner in which the terminations were handled." Bensimon (1994, p. 30) similarly noted, "time and time again, disgruntled workers who have become violent have said that what impelled them was not the fact that they were demoted or fired or laid off, but the dehumanizing way the action was carried out." Johnny Lee, founder and director of Peace at Work also stated "People do not shoot their boss because they lost their job or money; it is issues of respect, of control and their own sense of injustice. . .That's where being sensitive to employees can make a difference when delivering bad news"

Legal Standards governing termination differ greatly

Employment at Will with exceptions Generally applies to private sector, non-union employees Just Cause/Due Process Applies to about 20% of the U.S. workforce: most public and unionized employees, those with employment contracts, employed in Montana or following leave protected by USERRA For an employee, the loss of a job can be life-altering, affecting his ability to care for himself and his family, damaging career prospects, and damaging self-esteem. For an employer, the undertaking is stressful, sometimes dangerous, and apt to prompt legal actions.

Employment at will

Existed prior to the Supreme Court's upholding of the NLRA in 1937 There had been no such thing as wrongful termination. Now employment at will with exceptions: An employer may terminate an employee for any reason unless it is in violation of a specific legal right, as expressed in legislation or common law. Applies to a significant majority of the workforce. Impermissible Grounds for Termination Legal protections for wrongful discharge may be categorized as arising from these grounds: Constitutional Statutory Common law contractual tort claims Some protections are available only to public sector employees, union employees, or employees with individual employment contracts.

Breach of implied contract

Factors that may indicate the existence of an implied contract: A specific promise was made. The promise was made frequently and consistently. The source of the promise was someone with authority to offer it. The promise was communicated to the employee. The promise was not highly conditional. The employer's entire "course of conduct" was consistent with the promise. There was an exhaustive listing of dischargeable offenses in a handbook. A change to a less-protective policy was not communicated to employees. There was no effective disclaimer.

Unhappy birthday to you

For years, an employee had performed well statistically, however, she maintained a pattern of resisting authority, using foul language—even in front of customers—and insulting co-workers, especially younger ones. The employee eventually got a new, younger supervisor. The new supervisor decided she was not going to put up with this behavior and quickly put together a progressive disciplinary paper trail that led to the employee's termination within two months. The new supervisor jumped on incidents that, considering the employee's behavior over the years, were fairly tame, such as use of the word "damn." Management picked the employee's birthday as her discharge date—without ever consulting the HR department. She filed a wrongful discharge suit and the jury awarded her more than $100,000. One juror remarked that although he and other jurors disliked the plaintiff, the jury could not stomach what it regarded as the employer's overly hasty, slipshod and insensitive manner of terminating the plaintiff.

What to do during employment termination interview

Most experts agree that the responsible manager (immediate supervisor) should be the one who delivers the bad news and that another employee should be present. the best place to conduct a termination interview is in a neutral location, such as a conference room or an empty office. the length of the termination meeting should be kept short, lasting no longer than 10 or 15 minutes. Most experts agree that In terms of the "HOW", managers should Be direct, candid, firm, and clear Show respect and consideration for the employee's feelings, taking steps to spare their dignity Avoid arguments or debates Avoid cliches or platitudes (e.g., "It's all for the best.") Experts disagree with regard to timing most, but not all recommend early in the week most recommend at the end of the day most agree that you should check the calendar and avoid holidays, birthdays, anniversaries, etc.

Whistleblower Protection Statutes

Most states have whistleblower protection laws, although some apply only to public-sector employees. Federal government employees are covered by the federal Whistleblower Protection Act (WPA). Some whistleblowers are protected under laws that pertain to specific safety-sensitive industries (including aviation and nuclear power). A variety of federal environmental laws incorporate whistleblower protections for employees reporting environmental violations by their employers.

#5

Never get personal. One Research & Development manager finally received permission to fire an employee with a reputation for being difficult and emotionally unstable. He really lit into him, saying he had been a pain in the butt since he joined the company. The employee went home, retrieved a high-powered revolver, returned to the office, and shot himself in the head in front of the manager and his colleagues.

Elements of a claim-Public policy exception

Plaintiffs must show: The existence of a clear public policy relevant to their conduct (clarity element); That discouraging the conduct in which they engaged would jeopardize this public policy (jeopardy element); and That engaging in conduct supportive of public policy resulted in termination (causation element). If so, plaintiff will prevail unless the defendant is able to show that there was an overriding justification for the termination. If Plaintiff establishes these elements, the employer must show that there was an overriding justification for the termination.

Public employees: Due process

Prior to termination A hearing must be held that provides public employees with notice of the charges against them, explanation of the evidence, and opportunity to present their side of the story. Following termination A more elaborate hearing with opportunities to confront witnesses and present evidence is required (if requested). In general, public employers are responsible for affording their employees due process, both pre-termination and post-termination.

Whistleblower protection act

Prohibits taking or failing to take a personnel action because an employee or applicant has disclosed information that is reasonably believed to show: a violation of a law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety Some whistleblowers are protected under laws that pertain to specific safety-sensitive industries (including aviation and nuclear power). A variety of federal environmental laws incorporate whistleblower protections for employees reporting environmental violations by their employers.

Public employees

Protected by civil service laws that mandate that employment decisions be based on merit, NOT politics. Protected from wrongful termination by: The due process rights in property and liberty afforded by the 5th and 14th Amendments to the U.S. Constitution The freedoms of speech, religion and association afforded by the 1st Amendment to the U.S. Constitution. Teachers and professors in public schools and universities sometimes enjoy the protection of tenure laws, designed to protect the central purposes of academic life: to raise questions, express controversial ideas, and pursue the truth wherever it leads.

What to do before you fire

Provide some warning. All performance-based firings should follow a warning or probationary period unless immediate termination is warranted. Document, document, document. Prepare Script Paperwork Etc.

"Going Postal"

Since 1985, 29 postal employees have been killed by nine co-workers or former employees in nine separate incidents. A defining moment for workplace violence occurred in 1986 in Edmond, OK, where 14 employees were killed by a part-time letter carrier about to be dismissed.

Whistleblower protection act in an age of financial scandal

The Sarbanes-Oxley Act was enacted in 2002 in response to a wave of corporate accounting scandals. Protects employees of publicly traded companies who disclose information or engage in other protected activities. Pursuing claims has proven difficult. The Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted in 2010 in response to the banking and investment firm crisis and expanded whistleblower protections. Discuss Lockheed Martin v. Administrative Review Board Some whistleblowers are protected under laws that pertain to specific safety-sensitive industries (including aviation and nuclear power). A variety of federal environmental laws incorporate whistleblower protections for employees reporting environmental violations by their employers.

Disclaimer example

The contents of this handbook DO NOT CONSTITUTE A CONTRACT OF EMPLOYMENT. Nothing contained in this handbook should be construed as a guarantee of continued employment, but rather, employment with the XYZ Company is on an "at will" basis. This means that the employment relationship may be terminated at any time by either the employee or XYZ for any reason not expressly prohibited by law.

Elements of a prima facie claim of discriminatory termination

The protected class characteristic(s) relevant to the case. Prior to termination, the employee had been meeting the employer's legitimate performance expectations. The employee was terminated (formally or constructively). The employer sought a replacement or hired one with contrasting class characteristics, or A similarly situated person with different protected class characteristics engaged in similar conduct, but was not terminated. Elements of a Claim -Disparate Treatment Termination 1 Plaintiffs must show: 1. The protected class characteristic(s) relevant to the case. 2. Prior to termination, the employee had been meeting the employer's legitimate performance expectations. 3. The employee was terminated (formally or constructively). 4. The employer sought a replacement or hired one with contrasting class characteristics, or 5. A similarly situated person with different protected class characteristics engaged in similar conduct, but was not terminated. If Plaintiff proves a prima facie case, the employer must prove a nondiscriminatory reason for the termination. If the employer proves a nondiscriminatory reason, plaintiff must show that the articulated rationale is pretext and that the decision was more likely motivated by discrimination.

Factors determining "Just cause"

Was there a rule or standard prohibiting the behavior that was engaged in by the employee? Was the rule or standard clearly communicated to employees? Is the rule or standard a reasonable one? Has the rule or standard been consistently enforced? Was the discipline commensurate with the offense? Are there any mitigating factors calling for imposition of a lesser penalty? Is there sufficient proof that a rule was violated? Was the employee afforded due process? Was progressive discipline applied?

Constructive Discharge

When an employer creates intolerable working conditions with the intention of forcing an employee to quit. Quitting under these circumstances is construed as a termination if a reasonable person would have felt compelled to quit. Employers cannot avoid the legal consequences of terminations by effectively, but not officially, discharging employees (i.e., forcing them out).

Disclaimers

Written statements in employment documents that deny that statements in those documents create any contractual rights binding on the employer. Should be communicated to employees and employees should acknowledge receipt in writing. Recommended to maintain employment at will. Not foolproof - See Dillon v. Champion Jogbra To maintain employment at will, employers should incorporate disclaimers into employee handbooks and other documents defining the employment relationship.