Tag Archives: termination

REMINDER: Connecticut Employers Must Provide Rebuttal Opportunity For Employee Discipline

There is one aspect of Connecticut employment law that some Connecticut employers overlook …

Connecticut General Statute §31-128e(b) requires employers include in any

  • documented disciplinary action,
  • notice of termination of employment or
  • performance evaluation

a “statement in clear and conspicuous language” that informs the employee that he has the right to “submit a written statement explaining his position” should the employee disagree with any of the information contained therein.

This “rebuttal statement” must be kept in the employee’s personnel file and accompany the document that it is rebutting should that document be disclosed to any third party.  In other words, the rebuttal statement essentially becomes a part of the the write-up, evaluation or notice of termination.

It is recommended that all Connecticut employers review the forms used for employee discipline, performance evaluation, and termination and verify that the required language is present.  If it isn’t, be sure to add the required language.

Another Costly Lesson about Sex Discrimination

Nestlé Waters North America, the world’s largest bottled water company, has learned a $300,000 lesson about sex discrimination. The company recently settled a lawsuit with the EEOC relating to sex discrimination.

In this case, the company had created a new position (business manager) in its Florida office, One of the applicants (a female employee who had been with the company for 20 years) was overlooked for the position and instead the company hired a male employee who did not meet the minimum requirements for the role as described in the job description. The company later terminated the female employee as the result of a purported “consolidation;” however, of the 14 Florida zone managers and zone manager supervisor positions, only the female employee lost her job as a result of this consolidation.

Following the filing of the lawsuit, the company settled the claim for $300,000. The company is also required to develop and implement an anti-sex discrimination policy and to provide annual training regarding all forms of sex discrimination, including sex stereotyping, to its Florida management team.

Take home for employers

This case serves as an important reminder for employers regarding discrimination in the workplace.

When making hiring decisions, employers must exercise caution and hire the best candidate for the job regardless of gender (or any other protected class). If an employee is hired who does not meet the minimum qualifications for a job (based on a job description developed by the employer), this could serve as an indicator of a unlawful basis for the hiring decision – especially if a better-qualified candidate is rejected.

When making termination decisions, these must also be made with caution and not based on an employee’s protected class.

Retirement is a form of quitting under the California Labor Code

In a recent court case (McLean v. State of California), the California Supreme Court has clarified that retiring from employment is a form of quitting – at least in the context of the payment of final wages.

In McClean, the plaintiff was a former employee of the California Department of Justice who announced her retirement from her position on November 10, 2010 and retired on the same day. She did not, however, receive “full and prompt payment of wages” upon her retirement and, subsequently filed a lawsuit against the state for waiting time penalties.

Under California Labor Code sections 201 and 202, an employer is required to pay an employee his/her final wages in full and in accordance with the following schedule:

  • Involuntary Termination: On the employee’s last day of employment;
  • Employee “Quits” With At Least 72 Hours Notice: On the employee’s last day of employment;
  • Employee “Quits” Without At Least 72 Hours Notice: Within 72 hours of the employee’s final day of employment.

 

If an employer fails to pay final wages in full and “on time” (i.e. in accordance with the above-schedule), then the employer may be subject to additional waiting-time penalties of up to 30 days’ wages.

In defending its actions, the State claimed that since the plaintiff retired from her employment, she was not eligible to receive waiting time penalties because she was not “discharged” from her employment nor did she “quit.” The California Supreme Court did not agree. Instead, the Court held that the term “quit” encompassed retirement. As such, employers must follow the above schedule even when an employee retires.

While the California Supreme Court’s pronouncement may not come as a surprise to many California employers, this case does serve as an important reminder of the tight timeline employers must follow when paying final wages – regardless of the reason for separation from employment. Following this decision, California employers should review their practices for final payment of wages and verify not only that their practices comply with California law, but that their managers are aware of these requirements.

New Mexico Employers Are Not Required to Accommodate Employee’s Lawful Medical Marijuana Use

In an early 2016 decision (Garcia v. Tractor Supply Company), a federal district court has held that Tractor Supply Company did not violate New Mexico law or public policy by terminating an employee because the employee (lawfully) used medical marijuana.

In this case, the plaintiff (Garcia) had applied for employment with Tractor Supply Company and during the interview process, Garcia advised the hiring manager that he used medical marijuana to treat his medical condition. The employee was subsequently hired for the job and, as a part of the new hire process, was required to undergo a pre-employment drug test. Not surprisingly, the employee tested positive for marijuana use and the Company terminated the employee.

Following his termination, the employee filed a lawsuit against the Company claiming he was unlawfully discriminated against due to his serious medical condition and his physicians’ recommendation to use medical marijuana as a treatment for his medical condition.

In dismissing Garcia’s lawsuit, the Court found that requiring Tractor Supply to accommodate Garcia’s use of medical marijuana would require it to permit conduct that is prohibited under federal law, which is simply not the case.

The Court held that employers in New Mexico are under no duty to accommodate the use of medical marijuana by employees. This decision follows the holdings of similar cases in California, Colorado, Michigan, Oregon and Washington.

Unlawful Attendance Policy Results in $1.7 Million Dollar EEOC Class Settlement

A disability discrimination charge filed by the U.S. Equal Employment Opportunity Commission (EEOC) challenging the lawfulness of Pactiv LLC’s (a large manufacturer of food service/food package products) attendance policy has resulted in a $1.7 Million Dollar EEOC Class Settlement.

The Company’s attendance policy assessed “attendance points” against employees for all absences — including medical related absences.  The policy also prohibited granting employees a leave of absence as a reasonable accommodation for a disability and further prohibited an extension of a protected leave of absence (like FMLA) as a reasonable accommodation for a disability.  Finally, the attendance policy in question prohibited intermittent leaves of absence.

Under the attendance policy, when an employee accrued a certain number of attendance points, the employee was disciplined.  Ultimately, if an employee accrued enough points, the employee’s employment could be terminated.

Expanding Whistleblower Protections in California and Illinois

Two courts in separate states, one in Illinois the other in California, recently expanded the protections afforded Whistleblowers under their respective state laws.  In both cases, former employees asserted that they were terminated in retaliation for reporting suspected criminal activity to law enforcement in violation of the laws.

The Cases

In the first case, Cardenas v. M. Fanaian, D.D.S., Inc., an employee reported the suspected theft of her wedding ring from her place of employment to law enforcement. Police investigated the suspected theft including interviewing staff members on multiple occasions. As a result of the reported theft, and the stress that the investigation caused the employer and staff, the employee was terminated.

The second case, Coffey v. DWS Shoe Warehouse, Inc., involved an Assistant Store Manager of a shoe retailer who reported suspected shoplifting to police.  The employer’s policy stated that employees at the level of assistant manager were prohibited from contacting the police regarding suspected shoplifting, instead requiring them to use customer service techniques to prevent shoplifting and if need be, to contact internal loss prevention managers.  The employee was terminated for violating company policy.

In both cases the former employees filed lawsuits against the employers for violating state laws in terminating them.  While the cases came under distinct laws of two separate states (California Labor Code section 1102.5 and the Illinois Whistleblower Act), the text of the statutes were nearly identical, prohibiting in relevant part an employer retaliating against an employee “for disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute.”

In response to the lawsuits both defendant employers argued that the employees could not assert violations of the state laws because those laws are intended to protect employees who report violations of the law by the employer.  Therefore, because the employees reported suspected unlawful conduct unrelated to the employer, they could not allege any violations of the Whistleblower laws for their terminations.

Both courts disagreed.  They explicitly held that California Labor Code section 1102.5 and the Illinois Whistleblower Act protect employees who report the criminal activity of anyone, including third parties, from retaliation.  Thus, both former employees could bring claims for retaliation where their employers had terminated their employment as a result of their protected reporting activity.

Key Takeways

Employers in California and Illinois should be mindful that these cases expand the protections afforded employees under the law to include reporting non-employer criminal activity.  To stay ahead of potential liability, employers should check their employment policies regarding Whistleblower reporting procedures to ensure that they cannot be interpreted to violate employee reporting rights under state and federal law.  Employees, like all persons, have a right to seek assistance from law enforcement when they suspect criminal activity, regardless of the reporting procedure preferred by their employer.

Employer Compliance with HIPAA Insufficient Excuse for NLRB

According to the National Labor Relations Board (NLRB), the fact that an employer was complying with the Health Insurance Portability and Accountability Act (HIPAA) in order to protect the confidential medical information of its employees when it terminated the employment of two employees who violated its confidentiality policy, was an insufficient reason for the termination.

The employees had been caught using information from confidential files of other employees in a union organization drive they had obtained by hacking the employer’s database. Their employment was terminated for violating the confidentiality policies of the employer.  However, the NLRB found that because confidentiality policy prohibited the “breach of either patient or facility confidentiality,” it was overly broad because it covered the potential use of that information for union activities.

Additionally, because the employer had stored confidential information with non-confidential information, and because the employer had permitted access to that mixed information in the past, the employer was precluded from using the HIPAA violation as an excuse for the termination.

As a general takeaway, employers should keep in mind that union organizing rights of employees are broadly defined and protected.  Where possible and within reason, simply permitting those activities without interference might be the best option.  The opinion of the NLRB can be found here.

“He Said, She Said”

It has been said there are two sides to every story and the truth lies somewhere in between. It can be a long and arduous journey just getting to the truth — if you ever get there. Once you do, it’s your call on how to handle the situation.

Real life occurrences are rarely concluded as definitively as on an episode of CSI. Employment issues are often comprised of complex, sometimes multiple issues, involving several individuals. Employers only have to make a determination based on the facts presented and decide who is in the wrong and discipline or terminate, if warranted.

Who Do You Believe?

First: Determine if any wrong doing has occurred. Don’t entangle yourself in the minutiae of each account if there is no relevancy to the incident.

Second: Determine what actually happened. Your determination hinges on the credibility of the interviewees. Take the following factors into consideration:

History of allegations – has this person made allegations in the past? If so, were they     substantiated? Is this a disgruntled employee?
Testimony – is the information provided by interviewees consistent? Does the sequence of events match?
Witness knowledge – is the information provided by the witness first-hand knowledge or hearsay?
Instincts – watch for clues based on the interviewees’ behaviors? For example, did the interviewee avoid eye contact when responding to your questions? Was the interviewee crying when recounting the events?
Body Language – does the interviewee exhibit open or closed posture? For example open posture may include relaxed, unfolded arms; good eye contact; forward facing, etc. Closed body posture may include crossed arms; poor eye contact; clenched fists; etc.
Contradictions – look for inconsistencies in the events relayed by the complainant, accused and any witnesses.
Inherently improbable – is the story really believable? If it seems unbelievable, keep asking questions. If it is untrue, the story will likely unravel itself through additional probing.
Indirect admissions – did the person admit to something similar? Perhaps they did not do exactly what they are accused of, but are they admitting to something else?
Motives to lie – do any of the interviewees (complainant, accused and witnesses) have motive not to tell the truth?
Doesn’t answer the question – Asking a question that warrants an answer and the employee replies with a question, changes the subject, or gives an answer to a question that wasn’t asked, indicates avoidance. While it appears the interviewee is willing to assist in the investigation, they are refusing to answer the question.

In the end, it is up to you who you believe. Probe further if interviewees do not clearly answer questions. Ask questions more than once or phrase questions differently to identify inconsistencies.

Get it in Writing
Get initial statements written by hand from interviewees. A dishonest individual may tell on himself/herself or may find it difficult to recant their version of the events when questioned further. Compare written statements to questions asked during interviews to ensure individuals stick to the same story. If video surveillance is available, compare statements to tapings during the time period in question. You may notice an employee who is untruthful can’t recreate events to match actual events.

Document all responses to clearly show discrepancies. When you see it on paper, it may become crystal clear who is “telling the truth”. It may be that no one is telling the truth because everyone is guilty of something. In this case, everyone should be held accountable for their contributions to the incident and should be disciplined accordingly.
In conclusion, you may not always to be able to prove beyond a reasonable doubt what actually happened, but you will be assured the most appropriate action was taken based on the information presented to you if your investigation was thorough, fair and unbiased.

Medical Marijuana Users Eligible for Unemployment – Michigan

Employers that test employees for drug use – beware!

In Michigan, an employee who is terminated following a positive drug test may still be eligible to receive unemployment.  Ordinarily, an employee who is discharged for failing a drug test would be disqualified from receiving unemployment benefits under Michigan state law. Medical marijuana use is legal in the state of Michigan under the Michigan Medical Marijuana Act (MMMA).

In a recent appellate court decision, the Court ruled that registered patients who use marijuana for medicinal purposes consistent with the requirements of the MMMA and are terminated from employment for failing a drug test due to such use are entitled to receive unemployment compensation benefits. Denial of unemployment benefits, according to the Court,  is a “penalty” prohibited by the MMMA. The Court refused to find that the increased contributions employers will be required to pay as a result of the marijuana user’s receipt of unemployment benefits was a penalty to the employer.

Access to Employee Files Expanded

http://search.cga.state.ct.us/2013/ACT/PA/2013PA-00176-R00SB-00910-PA.htm

The state has enacted legislation which creates additional responsibilities for employers with respect to personnel file access, discipline and termination.  Under the law, an employer must permit an employee to view and copy their file within 7 days of the request.  Former employees who separated employment within 1 year of the request must be granted the same access within 10 business days of their request.  Employers must now provide employees with a copy of any disciplinary action within 1 day and a termination notice must be given at the time of termination.  All disciplinary notices, performance reviews and termination documents,  must include a statement in clear and conspicuous language that if the employee disagrees with anything contained in these documents, the employee may submit a written statement explaining his or her position.  The statement must be included in the employee’s personnel file.  The law is effective October 1, 2013 and employers should review their documents and procedure to ensure they are prepared to comply.