Can you discipline or terminate this employee?

June 27, 2014

The following are cases that were decided, or in process of being decided, before a court or agency (federal or state) that either affirmed an employee discipline (or termination) or reversed it. In some cases, HR may be at the center of the dispute.

What do you think happened in each one of these situations? Answers are provided below.

A non-union employer fired an employee who filed a lawsuit alleging FLSA violations.
An employee claimed that there was a hostile work environment because her boss allegedly yelled at and insulted her in front of her co-workers, and threw a notebook in her direction when he was upset with her demonstration of a new project. Over time her performance reviews became more negative, and she was eventually placed on a Performance Improvement Plan.
A union employer had a rule that no employee was allowed inside the building when not scheduled to work, unless the employee had prior approval of his or her supervisor/manager, Human Resources, or the Executive Director. Any employee on premises otherwise would be disciplined.
An employer fired the Director of Stores for the Mid-Atlantic Region (an executive and officer in the company) for performance. Under the terms of the severance contract the executive employee signed, he would be eligible for severance if terminated “without cause.” Then, after the firing, the employer discovered “pornographic materials” and “documents (that) contained racial slurs” in his emails. After finding these materials, the employer declared the fired executive ineligible for any severance.
The only female regional salesperson in the company, who was a top sales producer and had been lauded for performance, began clashing (in ways that were considered highly aggressive) with management over her reluctance to give up accounts to a newly formed sales territory. These disputes ultimately led to her termination. The employer contended it fired her for not being a “team player.” She claimed that male salespersons had voiced similar objections, but had not been terminated because of them.

The answers:

The FLSA firing: Reversed. An Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) found that firing an employee for filing a collective action under the Fair Labor Standards Act interfered with the employee’s right to organize under Section 7 of the National Labor Relations Act (NLRA), even though the action did not involve union organizing.
The notebook tosser: Affirmed. The court held that the employee did not prove that the conduct was sufficiently severe or pervasive to support her claims. The court further explained that isolated expressions of frustration and singular incidents (unless extremely serious) do not amount to a hostile work environment. Further, although the supervisor engaged in unprofessional conduct, “petty insults, vindictive behavior, and angry recriminations” are similarly not actionable under Title VII. Brooks v. Grundman, No. 12–5171 (Dist. of Columbia Appellate Court, 4/154/14)
The no-entry policy: Reversed. The National Labor Relations Board ruled that employers may validly restrict off-duty access as long as the rule applies only to the interior of the facility and other working areas, is clearly disseminated to all employees, and applies to all off-duty employees seeking access for any purpose. They could not ban only those engaging in union-related activity. Since the current NLRB interprets the concept of “union-related activity” very broadly, preventing employees from coming on premises will likely be limited to very narrow circumstances. American Homes of the West, Cases 32-CA-078124, 32-CA-080340 (5/1/2014)
The executive severance package: Unknown. The severance plan defines “cause” to include “willful violation or disregard of the standards of conduct set forth in . . . all Employer employment policies of general applicability.” The employer contends that having pornographic materials and documents with racial slurs in your e-mail violates its policies. Courts have allowed after-acquired evidence to be used to otherwise prevent severance from being paid out. It is a jurisdiction-by-jurisdiction issue. The case was just filed. The Bon-Ton Stores v. Pralle (District Court of Middle Pennsylvania)
The female sales person: Reversed. The court held that the employee was terminated for gender stereotyping. Testimony was introduced that a number of male sales managers disclosed that they too had argued with management over changes in sales territories and customer assignment. These disputes led to negotiation and compromise, not termination of the complaining male employees. The employer literally thought that women should act different than men in the same situation. Potter v. Synerlink Corp, Nos. 11-5092 & 12-5117 (10^th Circuit Court of Appeals, 4/21/2014)