Find the sweet spot when firing a bad employee

There is a balance between providing a poor-performing employee sufficient time to improve and waiting to long to fire someone. Cohen v. CHLN, Inc. (E.D. Pa. 7/13/2011) illustrates what can go wrong when this balance goes out of whack.

Howard Cohen managed various restaurants from 1998 through 2006, and again from 2007 until his termination in August 2009. During his second tenure with the restaurant company, his performance was less than stellar; he received various disciplinary warnings, write-ups, and suspensions, and two consecutive negative annual reviews. The restaurant waited to terminate Cohen, though, until the day after he advised of his need for back surgery. Based on that fact alone, and ignoring management’s internal discussions about terminating Cohen before he communicated his need for surgery, the trial court denied the employer’s motion for summary judgment:

Defendants have undoubtedly presented a wealth of evidence justifying their termination of Plaintiff. Nonetheless, their failure to fire Plaintiff, after years of poor performance reviews, until the morning after he requested leave for his back condition raises a sufficient question as to Defendants’ alleged discriminatory motive to render summary judgment inappropriate.

Don’t make the same mistake. Look for the sweet spot before firing a poor performer.

• Fire after you’ve provided the employee sufficient and reasonable warnings and opportunities to improve. Firing too early could lead a judge or jury to conclude that the termination was an ambush, and punish accordingly.
• Fire before the employee engages in some protected activity. Firing too late—as in the Cohen case—could lead a judge or jury to conclude that something other than poor performance motivated the decision. The last thing you want in a discrimination or retaliation case is a search for an explanation other than your proffered legitimate non-discriminatory reason.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Can you hear me now? Don’t forget mobile devices in your social media policy

You think you’ve crafted the perfect social media policy for your employees. You let employees have the freedom to engage in limited and reasonable social media from work, yet use server-side software to spot-monitor their activities just in case things get out of hand. Your company Internet also blocks grossly inappropriate content, such as pornography. Yet, your policy is missing one key component ... mobile devices.

According to a recent report by the Pew Internet Project (c/o Mashable), more U.S. adults have a smartphone than a college degree. 35% of surveyed adults reported that they own a smartphone, and of those people 87% use their smartphones as an Internet device. Moreover, smartphone adoption is set to grow an additional 45% this year alone. (GigaOm). Smartphone use is approaching a critical mass in our society.

What are these smartphone owners doing with their devices at work? If a recent survey published by TechNewsDaily is to be believed, they are accessing websites they wouldn’t ordinarily visit from their workstation PCs:

• 52% look for a new job
• 47% watch pornography
• 37% research embarrassing illnesses or conditions

In light of these stats, if your social media policy is written as an outright ban on the use of social media in the workplace, that policy is not workable. Moreover, if your social media policy does not account for smartphone use, it has a gaping hole that you need to fill immediately.

If you want to learn more about these issues, I cannot more strongly recommend picking up a copy of HR and Social Media: Practical and Legal Guidance, which (God willing) finally will be published and available for purchase this week. I’ll have more information as soon as it is launched.

You should also check out a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), and I will discuss all things social media and HR (and promote our new book at the same time). Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Retaliation is the Hannibal Lecter of employment claims

How often do you see a perfectly defensible employment claim go up in flames because of retaliation? Take, for example, MacDonald v. UPS (6th Cir. 7/14/2011) [pdf]. In that case, the Court affirmed the dismissal of the disability discrimination claim and a companion whistleblower claim, but sent the case back for trial on the retaliation claim.

MacDonald engaged in protected activity on September 18, 2006, and was fired the same day. He returned to work on October 16, 2006, and was immediately required to write the safety rules over and over again in a notebook while his coworkers had down time. Viewed in the light most favorable to MacDonald, this requirement was punitive…. Further, within as little as two weeks, UPS ordered that surveillance be conducted on MacDonald, with the goal of disciplining him, and as soon as the security supervisor was available, MacDonald was subject to extreme scrutiny in the form of hidden surveillance cameras and tails. MacDonald again engaged in protected activity on December 18, 2006. Three weeks later, MacDonald was tailed by two supervisors, who looked for and documented the most miniscule of infractions, which were not enforced against other drivers. UPS terminated MacDonald for those infractions the following week, and a week later, MacDonald was sent on a training ride with a supervisor, who fabricated a story of gross insubordination. The following day, MacDonald was removed from service.

Retaliation claims are pure evil. They are difficult to get rid of. Have the lambs stopped screaming?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #185 (the “3 is the magic number” edition)

Yesterday, my son turned three. For those of you who follow regularly, you’ll understand why yesterday was just a little more special to our family. If you want to know what helps makes me who I am, take a gander at my wife’s excellent blog, from yesterday, about our guy’s birthday (it really is well-written; I'm not just saying that because she's my wife).

Here's the rest of what I read this week:

Discrimination

• 5 signs that you may be in trouble with the EEOC for employee harassment – from Employment Law Bits
• Gender Pay Gap, Menstrual Cycles and Productivity – from The Proactive Employer Blog
• Fifth Circuit Holds Title VII Damage Caps Apply “Per Party” Not “Per Claim” – from Texas Employment Law Update
• Does My Employee Have a Medical Problem or a Performance Problem? – from Evil HR Lady, Suzanne Lucas
• Accused of sexual harassment? That's bad, but don't make it worse – from Employment and Labor Insider
• Male coworkers think I won’t return to work after my pregnancy—and won’t shut up about it – from Ask a Manager

Social Media & Workplace Technology

• Compliance and Google+ – from Compliance Building
• “Social Checks” Come of Age: What Does It Mean for Employers? – from Workplace Privacy Counsel
• Is The Jury Still Out On Social Media Background Checks? – from California Employment Law Report
• Monitoring the Private Lives of Your Employees – from You’re the Boss Blog
• Social Media Continues To Impact Litigation and Trial – from Connecticut Business Litigation Blog
• Social Media and the front porch – from Legal Marketing: Social Media Edition
• Facebook Trash Talk Is Not Protected Speech In A University Setting – from Minnesota Labor & Employment Law Blog
• Digging Up Social Media’s Treasure Trove of Discovery – from Law Technology News
• Tips for Electronic Communications – from Employment Matters Blog

Employee Relations & HR

• Looking at Employee and Going “Bang Bang” Is Not “Extreme and Outrageous” Conduct – from Dan Schwartz’s Connecticut Employment Law Blog
• Fact or Fiction: A “general release” settles all discrimination claims – from Eric Meyer’s The Employer Handbook Blog
• Noncompete Doesn't Prevent Ex-Employee from Working for Competitor – from Philip Miles’s Lawffice Space
• Diagnose and Eliminate Workplace Bullying – from Harvard Business Review
• When bad employers retain thuggish employment lawyers – from David Yamada’s Minding the Workplace
• The Value of EPL Insurance to Protect Your Business Against Employment Lawsuits – from CPEhr

Wage, Hour, & Benefits

• Web Chat Participants Ask Several Questions, Receive Few Answers from DOL’s Wage and Hour Division – from Washington D.C. Employment Law Update
• Working 40 Hours Per Week: A Normal Schedule, or Career Suicide? – from TLNT
• Ohio District Court Rules Profit-Based Compensation Scheme Constitutes Bona Fide “Commission” for Purposes of 7(i) Overtime Exemption – from Wage and Hour Law Update
• New Wal Mart Case Helps Defeat FLSA Class Action – from Wage & Hour - Development & Highlights
• Classless Claim In Topless Bar: Arbitration Clause Strips FLSA Action Bare – from Hunton Employment & Labor Law Perspectives™
• Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required – from The FMLA Blog
• To invoke FMLA protection for care of another, some geographic proximity is required by the employee – from Employment Law Matters
• Should you mention call-in policy in your FMLA notice to employees? – from HR Cafe
• Firing Employees for Gross Misconduct: How Is COBRA Coverage Affected? – from SmartHR

Labor Relations

• NLRB Public Hearings on “Quickie” Elections to Proceed on July 18-19 – from Seth Borden’s Labor Relations Today
• WFI: Ten Ways to Spur Economic Growth – from Labor Relations Institute

Until next week...

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

We’ve come a long way … and we still have a long way to go

In 1968, United Artists pulled 11 Looney Tunes and Merrie Melodies cartoons from televised syndication, deeming their portrayal of African Americans too offensive for contemporary audiences. The following Bugs Bunny cartoon, All This and Rabbit Stew (1941), was one of those 11:

The following is an excerpt from an EEOC press release, circa June 2011, announcing the filing of a racial harassment case:

According to the EEOC’s complaint, from as early as May 2007 through at least June 2008, Contonius Gill, a truck driver, and other African-American employees were repeatedly subjected to unwelcome derogatory racial comments and slurs by employees and managers at A.C. Widenhouse, Inc. These comments and slurs included “n----r,” “monkey,” and “boy.” On one occasion Gill was approached by a co-worker with a noose and was told, “This is for you. Do you want to hang from the family tree?” The complaint alleges that on another occasion, the company’s general manager told Gill, “We are going coon hunting, are you going to be the coon?”

Need I say more?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

How NOT to respond to an employee’s pregnancy

If an employee with low sales numbers announces her pregnancy, do you:

1. congratulate her and continue to treat her the same as before the announcement, or
2. ask others, “What are we going to do about that?”

According to the plaintiff in Majer v. Lexion Medical, her employer chose option 2, and will pay the price for it.

When the court put that damning statement together with evidence that the employer did not terminate at least one non-pregnant employees with worse sales numbers than the plaintiff, it concluded that it had “serious doubts” about the legitimacy of the decision-making process that led to the termination. In more technical terms, it denied the employer’s motion for summary judgment, sending the case to a jury trial.

As long as managers and supervisors make these types of comments, I won’t worry too much about the viability of my chosen line of work.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.