Employment Law Lessons From Chicken And Rice

by Cozen O'Connor
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Let’s first dispense with the opening hook by asking: Was Rutgers University acting “chicken” when it (finally?) chose to fire Coach Mike Rice only after public outrage over events that took place last year? Whether or not the masses agree that Rice should have been fired immediately last year when school officials first learned of his conduct toward his basketball players, there is no denying the tremendous role that social media played in the termination. But buried in the emotional outrage and sports talk is also a significant lesson to be learned by employers when it comes to how and when termination decisions are made.

College basketball insider Gary Parrish (cbssports.com) penned – well, really, typed – a terrifically-succinct piece that frames the issue: “[T]hese days it’s possible to survive an inexplicable act, but the reaction to that act will get you almost every time.” Parrish describes what has, by now, been clear to all of us: whether right or wrong, Rice was fired because of the intense social media backlash to the released video clips, and not because of what those clips showed.

Some might say that the story highlights the benefits of social media; that, however it happened and whatever prompted it, the employer ended up getting the employment result (Rice’s departure) correct, thanks to the impact of social media. But the larger issue for employers to consider is whether there is a consequence to waiting to make the decision like Rutgers did. And not simply from a public relations standpoint.

Suppose your employee has an employment contract that gives the employee severance if he is terminated without “cause”, and provides for no severance if he is terminated for “cause”. The term “cause” is defined in different ways, but typically requires more than simply “I don’t think he did a good job”. Assuming those contract provisions in Rutgers’ case, Rice was arguably not terminated because of the conduct displayed in the video clips that might trigger the “cause” provision. Instead, Rice was only suspended at the time and then allowed to return to work.

Rice was terminated later on, but one might argue that the eventual termination was not for “cause” because the underlying “cause” conduct was addressed with the prior suspension, and no similar conduct had taken place since then (as far as we know). That argument would say that he was fired instead because of public relations, public outcry, social media backlash, etc. If that argument holds, and the termination is not deemed to be because of the “cause” ground, the employer (Rutgers) could be on the hook for contractual severance owed in the case of a termination that is without “cause”. Depending on the amounts at stake, significant financial consequences indeed.

Employer Take Away: What should you as an employer take away from this development?

Clearly, any termination-related decision should be considered and reviewed seriously by the appropriate personnel. But the timing of your decision is a significant factor to include in that consideration and review. As noted above, the timing of the termination may impact whether the departing employee is owed any severance or anything else under your company’s contract or policy. And timing will also affect your ability to defend a termination decision in a lawsuit, since it may be harder to defend against claims of discrimination or retaliation when the act that you contend served as the basis for the termination decision happened a good amount of time before the termination was effectuated by you.

So you should ask yourself two questions when considering an employee termination:

            1.         Can you articulate (and justify) the true reason for making a termination decision?

            2.         Have you acted timely, and reasonably, in carrying out the termination decision?

If you cannot answer “yes” to both questions, you may go from a cute little chicken and rice helping to a much larger beef with your company.

 

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.

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