Make it easy for the judge to rule in your favor

One of the judge’s hardest jobs at a trial is to decide what happened because each side usually has a different view of events. To win, you want to do things that make it easy for the judge to rule in your favor. One technique frequently used by lawyers, because we know a judge may later be deciding what happened, is using a confirming letter or email.

Assume you are at an unemployment hearing after an employee quits over the phone. The employee testifies that he was laid off, maybe because after he quit he learned the impact it had on eligibility for benefits. The HR Manager testifies that he quit. If we had a celestial video recorder, we could see the employee did quit. But both witnesses are credible and there is no other evidence of what happened.

It is difficult for the judge to rule in your favor in this situation. The scales of justice are equally balanced. But there is public policy that favors awarding benefits to the unemployed which acts as a gentle breeze blowing down on the employee’s side of the scale.

Now, what if you have a letter to offer into evidence that was sent certified mail return receipt requested right after the phone call. (Or an email – hopefully sent with a delivery receipt so you have proof of receipt) The letter, or email, says:

Dear Employee,

This confirms our telephone conversation this afternoon. You informed me that you were quitting effective immediately. We will process the necessary paperwork and mail your final check.

We wish you well.

Sincerely,

HR Manager

The employee never responded to your letter. (They rarely do!)

Now, you have tilted the balance of the evidence way over to your side. By not responding to your letter, the employee essentially admitted that he quit. With this simple step, you have made it easy for the judge to rule in your favor.

Long hours, changing conditions, and availability to handle issues are essential functions of a Les Schwab assistant manager.

Peter Atkinson was a long-term Les Schwab employee with a history of chronic migraine headaches. After being promoted to a position of assistant manager, which required a more demanding schedule, he began to miss work, take time off to sit in the break room, and leave before his shift was over because of migraine symptoms. At other times, he continued to work but in a “lesser capacity” because of discomfort. According to his supervisor, Atkinson’s performance and motivation because increasingly worse.

Atkinson wanted Les Schwab to reduce his hours down to 40 to 50 per week and to allow him to schedule consistent, uninterrupted breaks. Les Schwab did not reduce his hours or the scheduled breaks. Les Schwab contended that because of the fast pace and high sales volume, the hours and management team’s presence were essential job functions.

Les Schwab ultimately removed Atkinson from his position. He sued Les Schwab for, among other things, failure to provide him with a reasonable accommodation in violation of RCW 49.60.

The Court of Appeals dismissed his claim. Atkinson v. Les Schwab Tire Centers of Washington, Inc., No. 44326-1-II, 2014 WL 1746110 (April 29, 2014). An employer is not required to eliminate or modify the essential functions of a job. The Court concluded that Atkinson’s requested changes would have required just that. The Court noted:

But long hours, changing conditions, and availability to handle issues that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged more than 5 million dollars in sales annually. To handle this volume, there were nearly 30 employees and only 3 managers at any given time. The management team was expected to be at the location before the hourly employees and to stay later. The luxury of completely uninterrupted breaks was not available to managers as it may have been for others.

This case is another example of the limits on an employer’s obligation to provide accommodations. An employer can require employees, even those with disabilities, to perform essential job functions, with or without a reasonable accommodation. Atkinson, though, did not want an accommodation to enable him to perform essential job functions; rather, he wanted the essential functions altered. That goes beyond an employer’s obligations.

How can I fire a pregnant employee without getting sued?

You can’t.   OK, that’s an overstatement; there are times it might make sense, but it is always a high-risk move.

What is the most important factor in whether an ex-employee files a lawsuit against an employer? Anger? Feeling unfairly treated? Need for money? Those are all way up there. But I think the top reason lawsuits are filed is that the ex-employee consults with a lawyer.

When you fire a pregnant employee, she is going to tell her co-workers, spouse, girlfriend or boyfriend, mother, father, grandparents, cousins, brothers and sisters-in-law, neighbors, best friends, casual friends, Facebook friends, acquaintance at the dog park, gym . . . you get the picture. EVERYONE she talks to will say “They can’t do that!” and urge her to see a lawyer.

Although “everyone” is wrong about whether you can fire a pregnant employee, there are a lot of laws that come into play. Some laws require favorable treatment such as time off when the employee is sick or disabled because of the pregnancy. Some laws prohibit treating the pregnant employee differently because of the pregnancy. For example, you cannot discharge an employee because she is pregnant.

To make matters worse, if the soon-to-be mother files a lawsuit, she is likely to find an audience with a very sympathetic jury and judge.

The likelihood she will consult with a lawyer at everyone’s urging, the complexity of the applicable laws. and the fact she will be a sympathetic plaintiff combine to make discharge a high-risk move.

This does not mean an employer’s hands are tied. There are steps to reduce you can take to reduce the risk of litigation. You could some things like making sure (a) you are aware of all applicable laws regarding pregnant employees and have documented proof of compliance with all these laws; (c) you have documented proof that the pregnant employee understood your expectations; (d) you have documented proof she not meeting your expectations; (e) you have documented proof that you gave her a meaningful opportunity to improve and the necessary tools to do so; (f) you notified her in writing that failure to meet expectations would result in discharge; (g) you use progressive discipline; and (h) you have documented proof that similarly-situated non-pregnant employees have been treated the same way as the pregnant employee.

Your goal is to build such an air-tight case that even an opposing lawyer or sympathetic juror or judge looking at the evidence feels compelled to rule in your favor. You are also trying to treat her in a way that almost agrees with the discharge decision. You would like her to feel so comfortable with the result and the overall process that her inner voice telling her that she was treated well is loud enough to drown out the voices that tell her she must see a lawyer.

Even under the best situation, though, I think discharging a pregnant employee will always be a high-risk move for employers.

What happens if you fire an employee who has given notice?

One of your non-exempt employees, Robert, tells you he is quitting in four weeks. You will be sorry to see him go, but you appreciate the notice.

Over the next few weeks, you find a replacement to start the Monday after Robert’s last day. You start to notice, though, that Robert’s heart is not in his work. He slacks off a lot and talks constantly to coworkers about his future plans. On Thursday of Robert’s last week, you decide you’ve had enough. You are better off without him and tell him you are making Thursday his last day. You do not pay him for Friday because you know you do not have to pay non-exempt employees when they don’t work.

Is Robert eligible for unemployment benefits?

Probably. An employee whose job ends because of a voluntary quit is disqualified for unemployment benefits unless the quit is for “good cause.” The statute sets out a specific list of reasons that constitute good cause and none of the reasons apply here. See RCW 50.20.050. On the other hand, a discharged employee is eligible for benefits absent specific reasons considered disqualifying “misconduct.” See RCW 50.04.294.

Here, and although each case has to be decided on its specific facts, even though Robert was going to work only one more day, his job did not end because he quit. It ended because he was discharged. And because nothing he did would likely rise to the level of “misconduct,” he will probably be eligible for benefits.

If, on the other hand, the employer had paid Robert through Friday, you get a different result. Paying the employee through their notice period preserves the “voluntary quit” nature of the resignation making the employee in most cases, ineligible for unemployment benefits.

 

 

Get the employee’s side of the story in his or her own words

An employee’s version of events resulting in discharge often change significantly over time. One cause of this change is likely because the employee’s interests change. When an employer is addressing performance or conduct issues before discharge, the employee’s primary interest is usually working with the employer to remain employed. When an employee files a lawsuit or other claim following discharge, the employee’s primary interest is beating the adversary – the employer.

Getting employees to put their version of events into writing when their primary interest is remaining employed makes it more likely you will get an accurate and honest description. And it will make it difficult for the employee to change their version when they become the employer’s adversary.

For example, assume that John complains to you that a co-worker, Robert, angrily yelled at him with a barrage of profanity when John asked Robert if he needed assistance. And also assume that what John says is absolutely true. You want to talk to Robert about the incident to get his version of what happened.

At this point, Robert is likely to act in ways consistent with his primary interest of staying employed. Sure, he may deny yelling or swearing at John. But there is a high probability that he may admit to the alleged behavior and try to justify his actions or appeal to you to give him another chance. If, at this point, Robert writes down what happened in his own words, the employer has the best chance it will ever have of getting the accurate and honest description of events from Robert’s perspective. And whatever his motivation for admitting the alleged behavior, it is still an admission that he did what John alleged.

Once you discharge Robert and he files a charge of discrimination, lawsuit, or a claim for unemployment benefits, his interest changes. Rather than trying to persuade you that his actions did not warrant discharge, he now wants to win. He has a strong interest in a version of events in which he did not swear or yell at John.

I cannot overemphasize the value to an employer of an early narrative in the employee’s own words. One of the key issues in any discharge case is proving what actually happened and proving that the motivation for the discharge was not an unlawful one. Having a written statement from the employee admitting to the misconduct or poor performance can convince an employee’s lawyer not to file a claim or lawsuit against the employer or, if a claim or lawsuit is filed, make it much more likely the employer will prevail.

There are several ways to get this type of description in the employee’s own words. I think the best way is for the employee to handwrite a statement. You could also have the employee type up a statement in a document or email. With either of these approaches, it is a good idea to include appropriate language and signature so that the statement is made under oath. And if you are worried that the employee’s own version may miss relevant issues, you can always ask the employee to address specific questions from you.

Another approach is to type up a statement or make detailed notes while interviewing the employee and then have the employee sign under oath that the statement or notes are accurate and complete. I think these approaches are not as powerful as a statement in the employee’s own words, but these approaches are better than not getting anything in writing from the employee. If you do not have the employee put things in his or her own words, I recommend that you also give the employee an opportunity to review the notes or statement before signing, to add information to make the document complete, to ask questions, or to revise the statement.

Avoid the use of a “Probation Period”

In my last post, I talked about firing employees during their first 90-days. There is a danger employers need to be aware of when referring to this initial period as a “probation” period.

One way employers alter the “at-will” employment relationship is by an express or implied promise, often in a handbook, not to fire employees unless the employer has a good enough reason for doing so, usually called “good cause.” A court could use your use of a “probation period” as a promise, by implication, that once an employee gets beyond the “probation period,” he or she cannot be discharged unless the employer has “good cause.” (And, in fact, this is often what union contracts provide.)

Here is the reasoning that an employee’s lawyer would likely use to file a lawsuit. During the 90-day “probation period,” everyone agrees that the employee can be fired for any reason. Once the employee passes the “probation period,” though, the employee must have some greater rights than before passing through that period. Unlike while in the period, the employee now cannot be fired unless the employer’s reason is a good enough one. The existence of the “probation period” is, in effect, an implied promise not to fire employees who have completed the period absent good cause. As a result, the employee can file a lawsuit to have a judge or jury decide whether that reason was good enough to justify discharge or whether the employer wrongfully fired the employee without good cause.

There are counter arguments employers can make. But to reduce the risk of this becoming an issue in litigation, avoid having a “probation period” in your handbook and train supervisors not to refer to a any “probation period” in day-to-day language.

Fire someone within the first 90 days

One way employers can avoid litigation is to fire poor performers before they have worked 90 days.

Most believe that after an employee works for certain length of time, typically 90 days, the company can’t fire the employee unless his or her performance is terrible (and the employer has first warned the employee) or the employee engages in gross misconduct like theft.

But this is not the law for most private employees. Washington, like most states, has “at-will” employment. Unless one of the limited exceptions to “at-will” employment applies, an employee can be fired without notice for any reason the employer thinks is good enough. One exception is when a collective bargaining agreement is in place. Another one is that an employee cannot be fired for race, age, sex, religion or other characteristic or activity expressly prohibited by a statute.

Lawsuits, though, are often less about the law and more about an employee wanting to remedy a perceived wrong. When someone has worked for an employer for a period of time, the employee develops a sense of job-entitlement. For whatever reason, maybe because union contracts have historically often incorporated a 90-day “probation period,” the ninetieth day has developed into a benchmark of sorts for when this job-entitlement belief really starts to take hold.

I have found that when the discharge of an employee is before the ninetieth day, the employee is much less likely to file a lawsuit, file a charge with a state or federal agency, or even to consult an attorney. On the other hand, the longer an employee is on the job after 90 days, the stronger the employee will develop a sense of job-entitlement and the greater the risk that the employee, when discharged, will file a lawsuit or take other action to remedy the perceived wrong.

When you have a new employee who is struggling with performance or conduct issues, if you do whatever is needed to resolve the issues or make a decision to discharge before 90 days has passed, you will reduce your risk of litigation. On the other hand, when deciding whether to fire long-term employees, recognize that the length of service, although legally irrelevant, affects the risk of litigation. It does not mean that you cannot fire the employee, but it may warrant more careful consideration about what steps you can take to mitigate the risk.

NLRB guidance on acceptable Social Media policies

National Labor Relations Board Acting General Counsel Lafe Salomon today issued a third report on social medial cases brought before the NRLB. The report details seven cases that came before the Board and identifies which policies the Board found unlawfully overbroad and which lawful. The NLRB rules apply to both union and non-union employers.

Whether a policy is acceptable is a very fact-specific question and the report details the facts that caused the Board to reach its decisions. But here are a few general guidelines gleaned from the report:

  • The key issue is whether the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Rules generally will be deemed unlawful when they are ambiguous and contain no limiting language or context making clear to employees that the rule does not restrict Section 7 rights.
  • Prohibiting disclosure or discussion of “confidential” information is likely overbroad without language or examples to make clear the policy does not apply to discussions of terms and conditions of employment.
  • Prohibiting all posting of the corporate logo is overbroad because it could restrict, for example, an employee posting a photo of picketing employees carrying a sign with a corporate logo.
  • Requiring employees to come forward with questions about whether a post is acceptable is overbroad if the policy arguably covers Section 7 activity because employees cannot be required to ask permission as a precondition to engaging in Section 7 activities.
  • Prohibiting employees from commenting on legal matters is overbroad because it restricts discussion of potential claims against an employer.
  • Although employers can suggest employees resolve disputes through internal methods like talking to managers, employers cannot require employees to use such procedures rather than post their grievances online.
  • Including a “savings clause” stating that the policy will not be construed in a way to restrict Section 7 rights will not cure an otherwise unlawful policy.
  • A policy prohibiting “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours from home and on home computers” is lawful.

Perhaps the best part of the report is that it includes a policy that the Board found lawful in its entirety. The policy is a helpful example that employers can use when crafting their own policies.

If you would like assistance in drafting a specific policy for your company, we would be happy to help you.

Still time to cComment on Seattle’s Paid Sick/Safe Leave Rules

The proposed administrative rules for Seattle’s new Sick/Safe Leave Ordinance are posted here. The period for public comment ends April 30th. If you missed the public meetings, you can still comment via e-mail to rulecomment@seattle.gov or by mail to:

Seattle Office for Civil Rights
810 Third Ave., Suite 750
Seattle, WA  98104-1627
Attn:  Paid Sick/Safe Time Rule Comment

Comments can also be made on line at http://www.seattle.gov/civilrights/comment.htm or by telephone at 206-684-4507.

The ordinance takes effective September 12, 2012.

Seattle Passes Mandatory Paid Leave Ordinance

As expected, the Seattle City Council passed a paid leave law today. Here is an article by Chris Grygiel at the Seattle PI describing the vote and setting out some bullet points about the law.

Under the new law, companies employing people in Seattle must provide paid “sick leave” and “safe leave.” Sick time is for the employee or family member’s illness, injury, or other health condition; treatment; or preventive medical care.  Safe time is for absences related to domestic violence, sexual assault, or stalking and for business or school closures because of  hazardous materials.

Time off is accrued at the rate of 1 hour for every 40 worked for smaller employers and 1 hour for every 30 worked if the employer has 250 employees. The maximum paid time off is 40 hours if there are fewer than 50 employees and 72 for larger employers. Hours can also be carried over from year to year. An employee need not be paid for unused hours at the end of employment.

Exempted from the leave requirements are employers with four or fewer employees.

You can review the new law here.