Monday, March 2, 2009

A textbook example in handling a problem employee

Every now and then, a case comes along that gives HR departments everywhere a good reminder that a few extra steps in dealing with a problem employee can go a long way in defeating a later lawsuit. Kiraly v. Office Max (2/26/09), out of Cuyahoga County, is just such a case.

Imagine you have what you can only describe as a difficult employee. He refuses to follow work rules, and when his supervisor presses him on why it is important for rules to be followed, he calls the police and claims harassment. Then, out of the blue, he simply stops coming to work. In a phone call with HR, he blames a medical condition. In response, the employer asks for medical documentation, which it does not receive. It then extends two more times the deadline for the employee to document his medical absences. When the employee misses both deadlines, the employer fires him for job abandonment. 

At any step in this process, the employer would have had good reason to fire Kiraly – for insubordination, failing to follow policies, or absenteeism. Yet, this employer’s HR department wisely gave this employee every possible chance to correct his deficiencies. Maybe Office Max saw the lawsuit on the wall and wanted to give Kiraly every benefit of every doubt. Maybe it had good employment lawyers orchestrating a rock-solid defense behind the scenes. Either way, how Office Max handled Karaly’s termination left the court with no doubt that discrimination did not motivate this employer’s decision:

We find nothing to refute Office Max’s conclusion that Kiraly had abandoned his position with the company. The record indicates that it is standard practice for Office Max’s store associates to wear the wireless headset while working. The record also contains Kiraly’s signed acknowledgment of this practice.

The record further indicates that after Kiraly’s refusal to wear the headset and his subsequent absences, the company gave him three extensions to produce medical documentation to excuse these absences. Finally, the record indicates that despite the three extensions, neither Kiraly nor his attorney produced the requested documentation. 

The record fails to establish that Kiraly’s employment with Office Max ended because of national origin discrimination.

The next time you are faced with a problem employee, consider if you are positioned to put on a defense similar to Office Max. If you fear is that the employee will suddenly see the light and you will be stuck with him, usually, once a problem, always a problem. The odds are that he will fail in whatever corrective path you send him down, and in the process will create a solid defense to any later claim he might bring.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or