termination – Page 2

December 2, 2019June 29, 2023

As Sure as Today Is Cyber Monday, Your Employees Are Shopping From Work

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $9.4 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

Consider these statistics:

68% of employees use time at work to shop online.
81% of millennials shop online at work.

Should you turn a blind eye toward your employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

I am big believer in open internet access for employees (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and it’s almost impossible to police anyway.

We no longer live in a 40 hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?

Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which employees are doing anyway). By trying to control employees’ internet habits, employers are fighting a battle they cannot win. The iPhone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.

Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday.

But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldn’t bring a knife to a gun fight, don’t bring a technology solution to a performance problem.

June 17, 2019June 29, 2023

How Long of a Leash Must You Give an Employee Before Firing?

When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?”

I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.
2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019)

Jason Anderson, African-American, claimed that GCRTA discriminated against him because of his race by denying him a promotion, issuing excessive discipline and ultimately terminating him. He lost. Why? Because his employer had a long and documented history of his performance and discipline issues.

On April 17, 2012, Anderson received a coaching for being involved in a preventable motor vehicle accident in an unmarked RTA Transit Police Vehicle.
On March 5, 2013, Anderson received a coaching for making disrespectful and unprofessional comments about a fellow officer over the police radio.
On August 14, 2014, Anderson received a coaching for failing to report to work for an overtime shift that Anderson had volunteered to work.
On January 1, 2015, Anderson received a coaching for neglecting his responsibilities as a first responder after witnessing a motor vehicle accident involving an RTA coach. Anderson continued driving rather than stopping to provide assistance to injured passengers.
On August 5, 2016, Anderson received a coaching for allowing a person to ride without proof of payment purchase or validation of fare and failing to take any enforcement action.
On August 5, 2016, Anderson received a First Written Warning for a disruptive, disrespectful and unprofessional outburst directed at Anderson’s supervising officer during the Republican National Convention. He yelled, among other things, “You disgust me. The very thought of you is disgusting to me and your presence sickens me.”
On January 25, 2017, Anderson received a coaching for failing to address the resistive and disorderly behavior of a fare violater at the Tower City Rapid Station.
On April 12, 2017, Anderson received a coaching for failing to attend to scheduled court appearances.
On May 30, 2017, Anderson received another First Written Reminder for violation of Employee Performance Code for failing to maintain control of a suspect following an investigative detention.
On June 13, 2017, Anderson was charged with multiple misdemeanors following an off-duty incident with his girlfriend during which he allegedly assaulted her while he had his loaded service weapon unsecured in their hotel room.

Based on this history, the court had little difficulty dismissing Anderson’s claims:

Plaintiff was issued three (3) First Written Warnings and (2) two non-disciplinary coachings, each based on a particular circumstance of Plaintiff’s problematic or violative conduct. Plaintiff provides no direct evidence to support a finding that his discipline or termination were made because of his race. Plaintiff also fails to demonstrate how any similarly situated employee received more favorable treatment. The record does however support a finding that GCRTA’s actions against Plaintiff were made for legitimate, non-discriminatory reasons following Plaintiff’s unlawful conduct the morning of May 26, 2017 at the Double Tree Hotel.

This employer gave this employee a very long leash before ultimately terminating his employment. Your leash may not, and likely need not, be this long.

However, no matter the length of your leash, you must ensure it’s documented and communicated to the employee each step of the way. Otherwise, you are asking for a lawsuit and issues in said lawsuit post-termination.

January 29, 2019June 29, 2023

When Can I Fire an Employee on Medical or Pregnancy Leave?

One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”

My response, always: “Why?”

There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.

While picking up the absent employee’s work, you discover he or she was not doing his or her job.
You uncover misconduct committed by the employee (fraud, theft, etc.).
You need to reduce headcount or eliminate the employee’s position.

Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.

Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).

Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.

Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:

Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.

If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.

Also in The Practical Employer: Your 2019 Employment Law Compliance Checklist

NLRB Flip-Flops on Key Independent Contractor Test