Employers, Don’t Commit These 5 Firing Faux Pas!

by Constangy, Brooks, Smith & Prophete, LLP
Contact

Do you think you have that employee termination all buttoned up, and no one will be able to challenge you? Defending that EEOC charge will be a slam dunk? No plaintiff’s lawyer in his right mind would represent your soon-to-be-ex employee?

Are you sure about that? Can we talk?tp-shoe

Don’t commit these five firing faux pas*.**

*This is not an all-inclusive list. There are probably more than five.

**I realize that a “faux pas” is a social blunder, and these are actually employer misconceptions. But I started thinking about the late Joan Rivers, and one thing led to another . . . language people, I apologize!

Faux Pas 1: “Our case is air-tight. She had documented performance problems.” Documented performance problems are certainly a good start toward defending a termination, but they may not be enough. Were the standards communicated clearly in advance? In what way? Were they applied the same way to all similarly situated employees (for example, to all employees in the same job, or reporting to the same supervisor)? Did you warn this employee of any deficiencies and give her a chance to improve before you started talking about pulling the plug? Are all of those prior warnings and the employee’s failure to shape up also documented? Are you sure that none of the decision makers had motivations that might have unfairly affected their perceptions of the employee’s performance?

Faux Pas 2: “We’re not concerned about this termination. We caught him being dishonest. Dishonesty is a legitimate reason for termination, right? Right. It usually is. But not always. Maybe the employee ate your merchandise because his blood sugar was low, arguably a reason that is protected under the Americans with Disabilities Act. Maybe the “dishonesty” was really just sloppiness or negligence, as often happens with expense reports and timekeeping. And maybe that second job the employee worked while on medical leave from your workplace was within the employee’s restrictions, while your job was not.

spinach-in-teeth

Faux Pas 3: “We researched the way we handled this situation in the past, and we found no ‘similarly situated’ employees who were treated differently.” That one sounds awfully good, doesn’t it? But there are two possible “similarly situated scenarios”: (1) you have tons of employees outside the protected group who were treated exactly the same way as the employee in the protected group; or, as frequently happens, (2) you have the one employee in the protected group and nobody else because this has never happened before — or, if it did, you didn’t know about it.

If you’re in Scenario No. 1, you are probably fine, but if you’re in Scenario No. 2, you could have a problem, as shown in this recent decision from a federal court in Indiana, finding that a Catholic school teacher gets to go to a jury on her sex discrimination claim. The plaintiff was terminated because she was undergoing in vitro fertilization, which is a sin according to Catholic teaching. The “medically involved” part of the in vitro fertilization process affects only women – the guy’s part is easy, medically speaking, and that’s all I’m going to say about that.

The plaintiff claimed that her sex discrimination claim should go to a jury because the undisputed evidence was that no men in the Diocese had ever been terminated for being involved with in vitro fertilizations. Which stands to reason, since men have the medically easy part, and it also appeared that there was no evidence that the Diocese knew of any male employees who were providing “support” to women in their lives who were undergoing in vitro fertilization. No matter, said the court – the jury will have to decide whether the plaintiff was discriminated against because she was a female, even though there were no similarly situated employees. (Although the defendants in this case were the Diocese and a Catholic school, there was no ministerial exception because the plaintiff was a language arts teacher.)

unzipped.fly.Boston

Faux Pas 4: “This employee is displeasing to me, and we’re in an employment-at-will state.” Are you kidding?

Faux Pas 5: “This employee has violated our attendance policy.” Maybe, but of course there are numerous “legally protected” attendance exceptions that you need to exclude before you decide whether the employee really has unacceptable attendance. Was the time off covered under the Family and Medical Leave Act, or should it have been? Was the time off necessary as a reasonable accommodation under the Americans with Disabilities Act, which may apply even if the employee is not entitled to FMLA leave? Was the time off protected military leave time? Was the time off protected under a state law providing job-protected medical, sick, restraining-order, parent-teacher conference, or other leave?

Don’t be caught by the fashion police! (Joan Rivers, rest in peace.)

CONSTANGY AUTUMN WEBINARPALOOZA!

If you haven’t done so yet, get on over to our website and sign up for Your Handbook Is Probably Illegal! How to Deal With an Activist Labor Board. This webinar will be held from 1 to 2:30 p.m. Eastern on Wednesday, September 24. Presenters will be Jena Cottreau“gladiator” Cliff Nelson, and Leigh Tyson.

And while you’re at it, sign up here for our four-part Webinar Series on the impact of the Supreme Court’s 2014 labor and employment decisions. You can register for the entire series, or just for the sessions that interest you. All sessions are on Thursdays, from 1 to 2 p.m. Eastern:

SEPTEMBER 11: Employee Retirement Income Security Act

Are time limits in a benefit plan for filing suit enforceable?

When a company is not doing well, how does this affect contributions to an Employee Stock Ownership Plan?

OCTOBER 9: Religious Freedom Restoration Act

What effect will Hobby Lobby have on the “identity” of a corporate entity?

Will the decision open the door for employers to discriminate, citing religious grounds?

How likely are the contraceptive requirements in the Affordable Care Act to affect other laws?

NOVEMBER 13: Fair Labor Standards Act

Sandifer v. U.S. Steel and its effect on compensability of donning and doffing time

DECEMBER 11: National Labor Relations Act

What will happen in all those cases declared invalid in Noel Canning?

NLRB’s continuing intrusion into employment investigations, social media, and employee handbooks

Plymouth Court and the duty to engage in effects bargaining over actions taken pursuant to a management rights clause.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP
Contact
more
less

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.