MODULE 3 BACKGROUND - EMPLOYMENT-AT-WILL AND PROGRESSIVE DISCIPLINE

www.theHRSpecialist.com October 2016 • HR Specialist: Employment Law 3

Legal Briefs Warn bosses about risks

of emotional outbursts At a meeting, Steven’s boss yelled, “Sit there and shut up … I could take away your job. If I take your job, you lose your health insurance. [Your wife] won’t be able to get the treatment she needs, and if she gets sick again, she’ll die.” Steven sued the supervisor, alleging intentional infliction of emotional distress. The court sent the case to trial, saying he may have a case if he can show the outburst was motivated by personal animus. (Landman v. Cray Youth and Family Services, WD PA) The lesson: Make supervisors aware that abuse personal attacks on employees can open the person up to an emotional distress claim under state law.

‘We lost our records’ is no excuse in pay cases

When it was sued for underpaying employees, a California company claimed it had lost its pay records during an office move a year earlier. Employees asked for sanctions, say- ing the company destroyed evidence. The company said the loss was inad- vertent. The court was unimpressed and sided with the workers. (Liu v. Win Woo Trading, ND CA) The lesson: Make sure pay records are up-to-date, accurate and avail- able. Retain pay records for at least three years.

Not a doc? Then don’t jump to medical conclusions

An offshore oil rig revoked a job offer to Carl when it discovered he was a Type I insulin diabetic, saying diabet- ics are “fragile.” The EEOC filed an ADA lawsuit on behalf of Carl, who had worked two years at a differ- ent oil rig with no incident. (EEOC v. Oilfield Instrumentation, U.S.A., Inc.) The lesson: The ADA says employers must conduct an individual assess- ment of a person’s ability to perform the essential functions of a job. Don’t rely on stereotypes about a condition.

No state or federal law requires you to establish a progressive discipline policy. But if you have one, make sure all your supervisors under- stand and follow it. Remind bosses of these principles for doling out progressive discipline:

Document verbal warnings and counsel- ing. Then the notes go to HR to be placed in per- sonnel files.

Write up more serious or repeat infractions. Remember, progressive discipline must be tied to records of employ- ees’ prior performance reviews, warnings and formal discipline.

Let employees tell their side of the story. Document what they say.

Let employees know what’s expected of them. Managers should

explicitly state: “I expect that you will ...” Then employees must receive the resources necessary to reach the goal.

Set deadlines. Give employees a reasonable time period to correct the problem. Generally, steer clear

of issuing a warning at 9 a.m. and terminating the employee at 3 p.m.

Spell out the con- sequences of inaction. Employees need to know that they will be sub- ject to a specific adverse

action if the problem isn’t fixed. Skip steps only when war-

ranted. It’s not illegal to termi- nate an employee without running through your gamut of progres- sive discipline steps. But be sure that such extreme action is clearly deserved.

Supervisors’ guide to progressive discipline

The best way to justify a termina-tion—both to an employee and to a court—is by being able to prove that supervisors walked step-by-step with the person through the progres- sive discipline program … from ver- bal reprimand right to the firing.

Such documented discipline will help protect you even in the face of apparent prejudice or bias on the part of individual managers. Here’s how that played out in a recent case.

Recent case: Brenda, who was 52 and had hepatitis B, worked as a university communications operator taking emergency calls and direct- ing ambulances. She took extensive FMLA and other leave over the years because of her medical problems and to have surgery. She also requested and received multiple reasonable accommodations for her disabilities.

The health system uses a five-step progressive discipline process that starts with a warning and ends with termination. Brenda moved through the process with punishments for

conduct ranging from failure to submit required doctor’s notes to unprofessional conduct during calls.

After a final warning, she was fired when she directed an emergency crew to the wrong hospital.

Brenda sued, alleging retaliation for taking FMLA leave and disability discrimination.

The court dismissed the case, even though Brenda showed that some of her supervisors had expressed frustra- tion with the amount of leave she took. The carefully documented pro- gressive discipline showed that she was discharged for legitimate reasons unre- lated to her leave or disability. (Kelly v. University of Pennsylvania Health System, No. 16-618, ED PA, 2016)

Your best lawsuit-prevention practice: progressive discipline

Online resource For a step- by-step progressive discipline policy—from verbal reprimand to termination—see our white paper, Designing a Progressive Discipline Policy, at www.theHRSpecialist. com/discipline.

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