Tag Archives: termination

May 17, 2017

Employer’s Dispute Resolution Program Did Not Prevent Employee Termination

By Steve Gutierrez

The Ninth Circuit Court of Appeals recently upheld judgment in favor of an employer on a former employee’s retaliation and wrongful discharge claims, ruling that the employer’s internal dispute resolution program did not prevent the employer from terminating the employee. In full disclosure, I represented the employer in this case and with my client’s approval, offer this insight into how we obtained this favorable outcome.

Account Executive Fired For Poor Performance and Missed Meetings

Jill Doran-Slevin (Doran-Slevin) began working for United Parcel Service (UPS) as an account executive in late 2010. Despite being assigned thousands of accounts, Doran-Slevin quickly began falling behind in her sales plan results. She also failed to adequately follow-up and serve her customers. In her 2011 performance review, Doran-Slevin was informed she needed to significantly improve her performance.

In early 2012, Doran-Slevin’s new area manager as well as human resources personnel worked with her to create a goal-setting matrix to help her improve her performance. UPS scheduled multiple meetings to discuss the matrix with Doran-Slevin, but she had a series of excuses for not attending the meetings.

During that time, Doran-Slevin composed two letters in which she alleged that she “was the target of discriminatory practices involving [her] gender [and] age.” She sent the first letter to UPS and the second to the EEOC. She did not, however, notify UPS that she had sent her allegations to the EEOC.

Upon receipt of Doran-Slevin’s letter, the company began investigating her allegations. While the investigation was ongoing, Doran-Slevin met with her managers to discuss a revised goal-setting matrix which she signed. Although UPS thought that the meeting had been positive and productive, Doran-Slevin stopped coming to work. For three days, she failed to show up for work or answer her phone. When Doran-Slevin finally called in and met with UPS managers, she indicated that she was interested in leaving with a severance package. UPS scheduled a follow-up meeting in order to discuss possible severance, but after Doran-Slevin failed to show up or answer her phone at the meeting time, UPS terminated her employment.

Employee Failed To Utilize Employee Dispute Resolution Program

UPS has an Employee Dispute Resolution (EDR) process that outlines a five-step internal grievance procedure. It begins with an informal open door step, followed by more formal dispute reviews, up to and including voluntary arbitration. Importantly, however, nothing in the EDR policy prohibits UPS from imposing discipline, including termination, while the internal dispute process proceeds. 

At the time of her termination, UPS informed Doran-Slevin that she could use the EDR process if she wished. In addition, when it sent her a formal termination letter, UPS enclosed a brochure explaining the EDR process. Doran-Slevin admitted at trial that she did not try to initiate the EDR process with respect to her termination. 

Former Employee Sues On Multiple Claims

Doran-Slevin pursued multiple claims against UPS, including retaliation under federal and state anti-discrimination laws based on her filing an EEOC complaint and wrongful discharge under Montana’s Wrongful Discharge From Employment Act.

The case proceeded to a jury trial in federal court in Montana. After many days of testimony, the district court granted judgment as a matter of law in UPS’s favor on Doran-Slevin’s retaliation and wrongful discharge claims. The court allowed Doran-Slevin’s claim for lack of good cause for termination to go to the jury, which returned a unanimous verdict in UPS’s favor. Doran-Slevin appealed to the Ninth Circuit Court of Appeals on multiple grounds, including the grant of judgment as a matter of law in favor of UPS.

Appellate Court Upholds Judgment In Favor of Employer

After considering the written positions of both sides as well as asking questions during oral argument, a three-judge panel of the Ninth Circuit affirmed the district court’s ruling. The Ninth Circuit stated that no reasonable juror could have determined that UPS terminated Doran-Slevin based on her filing of an EEOC claim because it was undisputed that UPS did not learn about the EEOC complaint prior to terminating Doran-Slevin. The Court also rejected Doran-Slevin’s wrongful discharge claims, finding in part that Doran-Slevin had not triggered application of UPS’s EDR program and additionally, the EDR program did not prohibit UPS from terminating Doran-Slevin. The Court upheld judgment in favor of UPS.

Take Aways For Employers

Litigation is rarely a pleasant experience, but achieving a court victory based on sound employment practices can make it worthwhile. Of course this case is unique on its facts and cannot guarantee the outcome of future cases, but some useful best practices regarding terminations may be gleaned from it, including the following:

  • Review employment laws of the state where the employee resides/works prior to making a termination decision. This case arose in Montana which has a unique wrongful discharge statute. An employer who relies on an employee’s at-will status when implementing a termination decision may well be out of luck in a state like Montana, so state-specific differences should be reviewed prior to making employment decisions.
  • Use disclaimers and disavow contractual obligations in your policies. By specifically stating that your handbook or other policies do not constitute a contract between the employee and the company, you may help eliminate claims that you breached your obligation to follow any particular steps prior to terminating employees.
  • If you use an internal dispute resolution process, reserve the company’s right to discipline or terminate employees for legitimate business reasons even while the process is ongoing. Similarly, if you use a progressive discipline policy, make sure that it states that the company may skip steps and escalate to immediate termination should the company deem it necessary.

By taking the time to get your policies and documentation in order and evaluating any risks prior to making a termination decision, you will increase your chances of prevailing should the employee file a claim against your organization.

April 19, 2016

Employee Reveals Medical Condition At Disciplinary Meeting – Now What?

Collis_SBy Steve Collis

You’re all set to fire an underperforming employee. You sit down for the disciplinary meeting and just as you start discussing her performance problems, she reveals she has back and neck pain due to work-related stress. What do you do? Here are practical steps you can take to handle this all-to-often workplace scenario.

Setting the Stage

Let’s look at the facts from a Tenth Circuit Court of Appeals case that dealt with this situation. Susan Bennett had worked as a Fiber Optic Tech for Paetec Communications, Inc. (Paetec) for twelve years. She was responsible for locating, repairing, testing and maintaining fiber optic cable in a service area covering parts of Oklahoma and Arkansas.

After Paetec was acquired by another company, Windstream Communications, Inc. (Windstream), Todd Moore became Bennett’s supervisor. Moore instituted a new policy requiring all technicians to check in at an assigned office each morning at 8 a.m. to allow for cross-training and to pick up company vehicles stored on the secured company premises.

Bennett was assigned to report to the Tulsa office each morning which required her to commute a total of almost four hours each day. She often arrived at the Tulsa office more than two hours late, or left several hours early to commute home. On a number of occasions, she failed to report to the office at all. Her time and attendance issues resulted in her being unable to complete a cross-training program that other technicians received.

A month or so after instituting the check-in policy, Moore and the company’s human resources specialist provided Bennett with a “final coaching” session which was the first step in the company’s progressive discipline policy. That same day, Bennett called to report that she was experiencing chest and shoulder pain due to work-related stress and had a doctor’s appointment the next day. The company directed Bennett to complete a workers’ compensation claim. She did and after she failed to return from her leave of absence, the company deemed her to have abandoned her job. She sued her employer, alleging her termination was due to gender and age discrimination. Bennett v. Windstream Comm., Inc., 792 F.3d 1261 (10th Cir. 2015).

Practical Steps To Avoid Liability

Disciplinary meetings do not always go as planned. As in Windstream’s case, employees sometimes disclose new information that raises a legal concern. When faced with an employee’s previously unknown medical condition, a new complaint about workplace harassment, or some other new issue, you should consider the following practical steps to help reduce the risk of liability for your organization.

Step #1 – Weigh Severity of Misconduct Versus Risk of Potential Liability

If an employee has engaged in severe misconduct, such as workplace violence, it may still be in your organization’s best interests to go forward with imposing the planned discipline or termination. As long as you are treating this person the same as any other employee who has engaged in this sort of severe misconduct, the risk of liability for a discrimination or failure to accommodate claim is likely low. In such cases, ensure that you have confirmed the facts supporting your discipline/termination decision and that they are properly documented before taking action against the employee.

For less severe infractions, such as attendance issues or failing to meet performance goals, however, moving forward with the planned discipline may be risky in light of the new issue(s) raised by the employee. You likely need more information about the person’s medical condition or newly asserted complaint before you can make an informed decision about your next steps.

In addition, you need to know whether the employee’s supervisor or anyone else in a decision-making capability had prior knowledge of the employee’s asserted medical condition or complaint. In these circumstances, your best practice is to inform the employee of his or her performance problems or misconduct at the meeting and explain the consequences of such conduct, but postpone imposing the discipline until you have had an opportunity to confirm the facts related to new information. If appropriate, you can place the employee on a paid administrative leave while you investigate the new issue.

Step #2: Have Written Policies and Follow Them

Good employment policies will provide you with a road map for how to handle most employee concerns. For example, if the employee asserts that she has been sexually harassed by her supervisor, follow your harassment policy and initiate an internal workplace investigation to determine whether harassment is indeed occurring at your facility. If so, take appropriate steps to remedy it. In the case of a newly revealed medical condition, determine whether it may qualify as a serious health condition under the Family and Medical Leave Act (FMLA) and then follow your FMLA policy, providing necessary notices and forms. As in Bennett’s case, if the employee alleges that the medical condition is work-related, handle it as a workers’ compensation claim and follow your workers’ comp procedures.

Step #3 – Provide Leave and Benefits to Which The Employee is Entitled

Once the employee has informed you of a medical condition, disability or other concern, your best bet is to provide them with the leave, reasonable accommodation or other benefits to which the employee is entitled. As frustrating as it may be that the employee waited until a disciplinary meeting to inform you of his or her condition, you now have knowledge of that information and you can’t put the genie back in the bottle. Sure, you can try to defend any potential claims by proving that you didn’t have knowledge of the condition when the actual discipline decision was made, but that sort of defense is fact specific and will be difficult to get resolved early in the case. If you want to avoid potential liability, it is best to offer any leave and benefits for which the employee is eligible.

Step #4 – Be Patient

It’s tough to back off on your planned discipline and “be nice” to a poor performing employee while he or she is out on leave or is getting medical treatment. It’s especially difficult in cases where you suspect that the employee may be manipulating the laws in order to avoid getting fired or being placed on a performance improvement plan. But be patient.

Let the workers’ compensation claim or FMLA leave run its course. At that point, the employee either comes back to work and is expected to perform up to your standards, or is unable to return to work. If the employee’s condition does not allow for a return to work, consider whether the employee’s condition is a disability covered by the Americans with Disabilities Act (ADA). If so, engage in an interactive process to determine if a reasonable accommodation would permit the individual to perform the essential functions of his or her job. A reasonable accommodation may include providing additional time off to complete medical treatments or recover, but you are not required to provide an indefinite period of leave. If you are patient and provide all required benefits until they are exhausted, you often are presented with clear, low-risk options for resolving the employment situation.

Step #5 – With Proper Documentation, Proceed With Discipline/Termination

An employee who engages in misconduct or performs poorly does not become “untouchable” simply by asserting a medical condition or harassment complaint. You may still hold them to your performance and conduct standards. First, be sure you have communicated your standards to the employee through an employee handbook, training and/or performance reviews. Second, ensure that the employee’s infractions or poor performance issues are properly documented in an objective, fact-based manner. And third, be certain to treat this employee the same as any other employee who has engaged in similar misconduct or poor performance. If you’ve met these criteria, you will minimize the risk that the discipline or termination you impose will result in liability.

Conclusion

Taking action to discipline or fire an employee is rarely risk-free. Taking such action after an employee reveals a medical condition, disability or other concern raises the stakes even higher. But you can minimize the risk of a lawsuit if you stay calm, follow your policies, and provide any rights and benefits to which the employee is entitled. Take each new development step-by-step and you will reduce the chance that you will need to defend your decisions in court.

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January 30, 2014

Firing for Off-Duty Medical Marijuana Use to be Reviewed by Colorado Supreme Court

By Emily Hobbs-Wright 

The Colorado Supreme Court announced that it will review last year’s lower court decision that upheld the termination of an employee who tested positive for marijuana but was unimpaired at work following his off-duty marijuana use for medical reasons.  As we previously wrote on this blog (see this post), last April, the Colorado Court of Appeals ruled that using pot during non-working hours is not a “lawful activity” under the state’s lawful off-duty activity statute (C.R.S. §24-34-402.5).  Coats v. Dish Network LLC, 2013 COA 62. The Court of Appeals reached its decision by relying on the fact that marijuana use remains illegal under federal law and therefore, medical marijuana use, though legal in Colorado, was not “lawful” for purposes of the Colorado lawful off-duty activity statute. 

The Colorado Supreme Court will review two questions: 

1. Whether the Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance; and 

2. Whether Colorado’s Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.  

Over the next few months, the parties will submit written briefs to the Court presenting their positions on these two questions.  With the importance of this case for both Colorado businesses and the marijuana industry, watch for additional groups to ask permission to submit briefs advocating their respective viewpoints.   Though the case before the Colorado Supreme Court deals with medical marijuana, the Court’s decision could establish precedent that would apply to the legal use of recreational marijuana.  We will watch this case very closely and will report on any new developments as they occur.

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March 28, 2012

A Checklist to Use before Discharging an Employee

By Nicole C. Snyder

          Clients often ask us to help assess the legal risk and proper procedures for discharging employees.  The following list is not exhaustive, but it provides a helpful starting point for considering almost any termination of employment:

 1.    Do I fully understand the facts surrounding this employee?  Have I done a full investigation of why this employee is being selected for termination?

2.    Have I assembled this person’s records?  Is the personnel file in order?

3.    Have I read any company policies/employee handbook provisions that are relevant to the situation to be sure we are complying with them?

4.    Is my decision to discharge this person (or the supervisor’s decision) based on facts, not suspicion or emotion?

5.    Is the employee subject to a collective bargaining agreement that must be followed?  If so, are we following it?

6.    Has the employee received at least one warning of possible dismissal or at least some prior notice of significant performance issues?    Do we have documentation of these warnings or instances?  Has the employee had some reasonable time and opportunity to correct the performance problems?

7.    Does this employee have an employment agreement or any other kind of agreement concerning the term of his or her employment? If so, is the employee an at-will employee, or can he or she only be terminated in certain situations and pursuant to procedures set forth in the agreement?

8.    Has this employee signed a noncompete or confidentiality agreement?  If so, have I consulted with legal counsel to determine whether the noncompete agreement is enforceable and determined what type of communication to use during the termination meeting concerning these post-employment restrictions?

9.    Have I checked the company policies/employee handbook to be sure that I am complying with any warning systems?

10. Does this employee have any kind of equity interest in the company, such as stock, membership units, or options?  If so, have I worked with the corporate department or legal counsel to be sure we are addressing those interests correctly? 

11. Have personal difficulties or special circumstances been taken into account, such as family or medical conditions?

12. Is dismissal in this case consistent with past practices?

13. Would the company be able to justify the decision if he/she claims discrimination or unjust dismissal?

14. Has this decision been discussed and approved by higher management or any other person in the company that needs to approve it?

15. Have I scheduled the dismissal/exit interview to minimize the employee’s personal contact with other employees before he/she leaves the premises?

16. Have I arranged for two people to be present at the dismissal/exit interview?

17. Have I arranged for the final paycheck and am I prepared to explain the amount?

18. Do I know what group insurance the employee has and am I able to explain what will happen to it after dismissal?

19. Have I decided what restricted statements will be made to other employees concerning this person’s discharge?

20. If the employee is being offered any form of severance pay, have we considered a severance agreement so we can obtain a release of claims from this employee?

21. Would a jury conclude that our treatment of this employee was fair?

22. Are there any special circumstances that should be fully evaluated with legal counsel prior to the termination?  For example, does this termination fall within the legal “caution zone”?

  • Employee has a medical condition or has recently been on any type of leave
  • Employee is in a suspect class protected by discrimination laws (for example, the employee is female or over 40 or disabled or a member of a certain religious group or a racial minority)
  • Employee has complained recently about being harassed or working in a hostile environment
  • Employee has brought important problems to the company’s attention recently (for example, has notified management that the company is potentially doing something illegal)
  • Similar employees have not been discharged for the same behavior this employee is being discharged for
  • More than one employee is being discharged at or about the same time