Last week, we looked at some of the concerns businesses face when they consider whether to let an employee work the duration of their notice period or if it’s better to cut ties quickly. Read about the issues that notice periods can cause in that post, “Don’t let the door hit you on the blank on the way out.”
Discrimination Concerns
Of concern to many HR managers has been whether or not waiving a notice period can somehow be considered discriminatory. This issue was recently addressed by the Iowa Court of Appeals in its February 3, 2021 decision in Alisha Munoz v. Adventure Lands of America Inc. In this instance, Ms. Munoz brought an employment discrimination suit against Adventure Lands America, Inc. (Adventure Land), alleging among other things, sex discrimination, disability discrimination, and discharge in violation of public policy. The original court granted summary judgement to Adventure Land on all counts. While the Appellate Court agreed that summary judgement was appropriate for most counts, it did send the issue of hostile work environment back to the lower court for further review.
Terminations and Benefits Qualifications
Ms. Munoz was a seasonal employee at Adventure Land. Ms. Munoz gave a one-day notice, informing Adventure Land that her final day of work would be Labor Day. Adventure Land determined that it did not need her to work and waived her notice. The court considered the fact that if Ms. Munoz had worked through Labor Day, she would have received a seasonal bonus. In this instance, unlike simply waiving a notice period which at most would result in an employee losing pay for hours, Ms. Munoz was losing out on a bonus. Note that although it was not addressed in the case, certainly terminating an employee immediately before they qualify for certain kinds of benefits, including things like disability, can result in not only the types of claims that were filed here but also potential ERISA issues. Ms. Munoz was only giving one day of notice but claims in her initial complaint that she was terminated from employment although she had decided to quit. Citing Curvy v Solutia Inc., the court reiterated the idea that an employee who resigns cannot subsequently claim that the employer’s acceptance of the resignation is somehow a discriminating employment action.
Hostile Work Environment
In looking at the hostile environment claim, the court evaluated a series of factors, noting that there is a fairly high threshold to determine a hostile environment. The court noted the relatively short period in which Ms. Munoz had worked with Adventure Land, stating that extremely short time periods may make a hostile work environment claim less viable. While the court expressed some concerns about the ultimate validity of the hostile work environment claim, it stated that it needed to be mindful, “of the legal standards that are applied to the summary judgement stage of the proceeding,” in determining that a hostile environment claim could go forward. Because hostile work environment claims present mixed questions of law and fact, which is normally the purview of the jury, the court did allow the hostile environment to claim to go forward. This hostile work claim was based exclusively on the issue of her disability concerns and did not relate to the quick acceptance of her resignation but allegations of almost, “daily bullying and harassment from her supervisors at Adventure Land.” The hostile work environment claim was bolstered in the court’s eyes by the fact that Ms. Munoz alleged daily and highly inappropriate comments from supervisors. Noting that the, “harassing behavior of her manager carries more potency than that of a co-equal.”
Wrongful Discharge in Violation of Public Policy
One of the final claims considered by the Appellate Court was wrongful discharge in violation of public policy. This is a somewhat amorphous claim in Iowa that allows plaintiff’s counsel to look not only to specific statutory policies but more general ideas of what is and is not a public policy. The court reiterated consistent findings that the policy must be a clearly defined public policy and that when there is a specific statute, that statute preempts secondary claims of wrongful termination in violation of public policy. The court states once again that the statute would be the “exclusive remedy for [any] violation…”
Court Reiterates Decision
This matter was also addressed by the Iowa Court of Appeals 14 days later when it issued Nemmers v. City of Spencer, Iowa. In a very short ruling, the court states that the ICRA preempts claims that would otherwise be covered under the Act. Nemmers’ claim was one of age discrimination, clearly a claim addressed by the ICRA. This short opinion might be read as a “stop bringing this stuff to us - we already told you,” opinion.
The Big Picture
What’s an HR manager to do? Draft policies that give you the ability to waive notice periods while still enforcing notice periods where appropriate. Assess your business needs carefully including any issues relating to confidential data such as HIPAA/HITECH or IP concerns. The Munoz case indicates that simply ending the notice period in and of itself is not typically discriminatory action and accepting the resignation, even if you accept it early, is not per se discrimination.
