How to properly terminate an at-risk employee

Employees often believe that an employee’s exercise of a protected right acts as a shield to protect the employee from termination. And often they are right. That shield, however, does not insulate an employee’s  poor performance. For example, take King v. Aultman Health Foundation (Stark Cty. Ct. App. 11/30/09) [pdf].

Brianne King took three different medical leaves during her employment, plus intermittent leave under the FMLA. Following her leaves, and during her intermittent leave, she had a documented history of poor attendance:

1. Medical leave for surgery: Mar. 24 – May 5, 2003

• Feb. 2004: written warning for attendance.
• Three-day suspension for missing work from May 9 – May 12, 2004.
• May 14, 2004: written warning that her next call-off in the next four months would result in termination.

2. Medical leave for surgery: June – Aug. 2004
3. Medical leave for surgery: Feb. 27 – May 16, 2005
4. Grant of intermittent FMLA leave: Oct. 2005

• Mar. 2006: verbal warning for tardiness.
• Aug. 2006: written warning for tardiness.
• Sept. 2006: two-day suspension without pay, plus six-month probationary period, for tardiness.
• March 19, 2007: written “last chance” suspension for four tardies between Feb. 24 and Mar. 19.
• Apr. 12, 2007: Tardy again.
• Apr. 21, 2007: Again warned that another attendance issue would result in termination.
• May 8, 2007: Forgets she is scheduled to work and misses work.
• May 9, 2007: Resignation in lieu of termination.

The court of appeals upheld the trial court’s dismissal of King’s disability discrimination claim:

[King] has asserted that her inability to come to work in a timely fashion was caused by pain, nausea, fatigue, depression, and the continuing effects of her hysterectomy on her ability to care for herself. However, when [King] was confronted by her supervisors about being tardy, [she] did not ask for an accommodation for a disability, but rather offered various other reasons for her lack of punctuality. The undisputed evidence shows [King] was not terminated for her claimed disability, but rather for tardiness and poor work history. [King] was terminated due to a well-documented, poor attendance record.

The hospital prevailed in this lawsuit for three reasons:

1. King had serious attendance problems.
2. The hospital documented each and every attendance violation.
3. The hospital gave King no less than eight chances to correct her attendance problems before it asked her to resign.

I probably would have pulled the trigger sooner on the termination. Nevertheless, the fact that the hospital gave King a second, third, and even an eighth chance before it ended her employment served it well.

In disciplining an employee who has engaged in protected activity, ask yourself, “Will a judge or jury think that we gave this employee a full and fair opportunity to correct her behavior? Did she have notice that she would be terminated if her performance did not improve?” Unless you can answer yes to these questions, consider delaying the termination until you can.

Why you need a workplace technology policy

While doing some routine maintenance of its computer system, Butler Township discovered that members of its fire department – including part-time firefighter Ralph Bowman – had been accessing and downloading violent and sex-related files from the Internet on work time using Township computers. The computer records revealed that Bowman watched eight videos while at work. Seven of the videos were violent, military videos: Lions Eat Man, Hamas Militant Shot Killed, Felony Fights, Helicopter Crewman Execution, Sniper Shots, Guerillas Killed, and Terrorists Guerilla Killed. The other, called Best Girlfriend Ever, contained sexually explicit language, but was not pornographic.

The Township permitted its employees to use Township computers and other media for personal use during down time. The Township did not provide any guidance as to what types of computer usage were acceptable or appropriate, except for a Code of Ethics that instructed Township employees that they were “bound by the highest standards of morality” and should conduct themselves so as to not bring discredit to the Township.

The Township terminated Bowman for malfeasance in accessing and viewing “inappropriate materials” at the firehouse.

In Bowman v. Butler Township Bd. of Trustees (Montgomery Cty. 11/20/09) [pdf], the court of appeals reversed the termination. It reasoned that because the Code of Ethics was vague as to what computer use was permitted, and because there was no other policy to guide Bowman regarding acceptable computer use during his down time, the Township could not use the Code of Ethics as a basis for termination.

This case is an excellent example of the need for employers have a technology policy that spells out, in sufficient detail, what is and what is not acceptable use of an employer’s equipment. As Bowman points out, failing to have such a policy could leave you without a remedy against an employee who misuses technology.

Come back Tuesday when I’ll share some insights on what to think about when drafting a workplace technology policy.

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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 jth@kjk.com.

Do you know? Recertification of FMLA leave

Asking an employee taking leave under the FMLA to recertify the need for the leave is a powerful tool employers can use to curb FMLA abuse. However, there are specific rules employers must follow to ensure that they are not the one accused of abuse.

1. 30-day rule.

Generally, an employer may request recertification no more often than once every 30 days, and only in connection with an absence by the employee. An employer can never ask for or require a second or third opinion on recertification. It must wait for the next 30-day period to request another recertification.

2. More than 30 days.

If the employee’s medical certification shows that the minimum duration of the condition is more than 30 days, an employer must wait for that minimum duration to expire before requesting a recertification.

Regardless of the minimum duration, an employer may always request a recertification of a medical condition at least once every six months in connection with an employee’s absence.

3. Less than 30 days. 

An employer may request recertification in less than 30 days if:

• The employee requests an extension of a leave; or
• Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or
• The employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification (e.g., an employee with a knee injury playing on the company softball team). 

4. Timing.

An employer must give the employee at least 15 days to provide the recertification. The employee must meet that deadline to keep his or her FMLA leave, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

5. Content.

The employer may ask for the same information when obtaining recertification as permitted for the original certification. The employee has the same obligations to participate and cooperate in the recertification process as in the initial certification process. Importantly, as part of the information allowed to be obtained on recertification, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.

6. Expense.

An employer can require that the employee bear the cost of the recertification.

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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 jth@kjk.com.

Truck drivers with positive drug tests should not file lawsuits … period.

Consider these facts:

• A city garbage truck driver is injured on the job.
• When he goes to the ER for treatment, a blood test reveals cocaine in his system.
• Upon returning to work following a workers’ compensation leave of absence, he agreed to attend Narcotics Anonymous meetings as a condition of his employment.
• He did not attend the meetings.
• When it was discovered that he was trying to surreptitiously tape record his follow-up conference with the city, he received a five-day suspension.

How do you think the subsequent law suit filed by this employee against the city turned out? Garofolo v. City of Fairview Park (8th Dist. 12/10/09) [PDF] has the details. The short answer (surprise) is that the employee lost:

Garofolo offers no legal basis for his argument that appellees should have ignored the disclosure of his positive drug test and that he should not have been subjected to the substance abuse program or other measures taken by appellees. We find the argument that the appellees should not have acted upon the information to be disingenuous in light of Garofolo’s safety-sensitive position and DOT requirements. Indeed, once provided with the information, Fairview Park had a clear interest in creating a safe working environment.

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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 jth@kjk.com.

WIRTW #107

Tiger Woods

• Tiger Drives Home a Lesson: Be Careful with Voice Mails – via Mindy Chapman’s Case in Point.

• And In Celebrity News! – from Jason Morris at the EmployeeScreenIQ Blog.

• Tiger Texting – via Rob Radcliff’s Smooth Transitions.

• Tiger’s Brand Bogey – from Jonathan Littman at I Hate People...But It’s Nothing Personal.

• And now for something completely different, Shut Up Already! Tiger Woods Has Taught You Nothing – at Rehaul by Lance Haun.

Discrimination

• Christmas Decorations at Work – from The Word on Employment Law with John Phillips.

• EEOC Releases Semiannual Agenda Prioritizing GINA, Revised ADA Regulations, and a NPRM on ADEA Issues – via Washington Labor & Employment Wire.

• Is Your Organization Required to Have an Affirmative Action Plan? – answered by the New York Labor & Employment Law Report.

• The New York Times On Hiring Discrimination ... Again – via Discriminations.

• Points to ponder when filing responses to EEOC charges – from Mike Maslanka’s Work Matters.

• 9th Cir: ADAAA Is Not Retroactive – by Alaska Employment Law.

Wage & Hour & Benefits

• Working Time FLSA Class Action Hits Amazon Over Punch In/Punch Outs – by Wage & Hour Developments & Highlights.

• Perils of Having Employees Work Through Lunch – by the Overtime Advisor.

• Pharmaceutical Sales Reps Qualify for FLSA "Outside Salespeople" Exemption According to Federal Court in Arizona – by Wage & Hour Counsel.

• Questions as COBRA Assistance Comes to an End – by Jennifer Hays at the Warren & Hays Blog.

Employment Policies

• Snow Day! (Or Not) - Employers Have Flexibility on Winter Storm Policies – by Dan Schwartz at the Connecticut Employment Law Blog.

• Tips for drafting employee handbooks – via Employment Law Bits.

• Social-Media Policy Ideas – by Molly DiBianca at the Delaware Employment Law Blog.

Background Checks

• How Are Employers Using Social Networking? – answered by Mark Toth’s Manpower Employment Blawg.

• EEOC Files Discrimination Case Over Background Checks – by Nick Fishman at the EmployeeScreenIQ Blog.

• More Failures to Keep a Low Profile When Falsely Claiming Disability – via Lowering the Bar.

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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 jth@kjk.com.

Ethics vs. Law: discrimination on the basis of political beliefs

Interesting article by the New York Times’s resident ethicist, Randy Cohen (from the 12/6/09 Sunday Magazine) on whether a company can ethically refuse to hire a candidate because of political views:

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living?

What is unethical is not necessarily unlawful. Whether by state or federal law, Ohio employers cannot discrimination of the basis of race, color, religion, sex, military status, national origin, disability, age, ancestry, or genetic information. This list does not include political beliefs or affiliation – at least for private employers. Yet, just because something is legal does not mean it makes a good HR practice.

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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 jth@kjk.com.

Department of Labor, and its Wage and Hour Division, set 2010 regulatory agenda

This week, the Department of Labor is hosting a series of live chats through its website. The goal is to outline and discuss the DOL’s regulatory agenda for 2010 [PDF]. Transcripts are available at http://www.dol.gov/regulations/index.htm#chats.

On Monday, Secretary of Labor Solis participated in her own chat. Her highlights:

• One of her priorities is ensuring that low income and minorities receive help from the DOL.
• New FLSA regulations on record keeping will be published in August 2010.
• WHD now has a Director of Training with a staff that has done a comprehensive review of the Wage and Hour training programs and materials. Specifically, they have developed a 12-week written course for WHD’s 250 new investigators.
• Secretary Solis and President Obama support the Employee Free Choice Act; the ball is in Congress’s court.

Yesterday, Wage and Hour Division Deputy Administrator Nancy Leppink conducted its chat. Here are the highlights:

• WHD’s regulatory agenda for 2010 includes proposed rules for child labor, non-displacement of qualified workers under service contracts, FMLA, records to be kept under the FLSA, and other amendments to the FLSA.
• WHD plans to provide additional guidance to employers on how to comply with the recent military leave amendments to the FMLA.
• WHD intends to publish a final rule under the FLSA that will clean up many of the out-dated regulations.
• Wage and Hour recently hired 250 new investigators to boost the division’s ability to ensure compliance with wage and hour laws. As the new staff are trained, the division will target industries in which vulnerable workers are employed and will work to respond to complaints in a timely manner.
• Industries that employ vulnerable workers include agriculture, restaurants, janitorial, construction, and car washes, among others.
• WHD is working on a new Public Service campaign, “We Can Help,”  to inform workers of their rights under wage and hour laws, to be rolled out in early 2010.

All in all, the chats were not all that revealing, but did reinforce that the next three years are going to be different for employers. Secretary Solis has an ambitious agenda to help low income employees, whom she perceives as “at risk.” Continue to follow this space in the coming year for updates on any new DOL regulations as they are released.

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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 jth@kjk.com.