"Termination May Not End It"

1. Labor Letter
www.laborlawyers.com
March 2014
Distracted Driving: What’s In Your Policy?
By Jennifer Sandberg (Atlanta)
Long before cell phones, drivers faced various distractions: eating,
grooming, attending to children, changing the radio station, rubbernecking
someone else’s accident, becoming absorbed in a conversation, or
arguing. These distractions created safety hazards and, of course, still do.
So just what is “distracted driving”? Anything that takes a driver’s
attention off the task at hand – driving safely.
Distracted driving clearly includes dialing or talking on a cell phone
(even hands-free) and texting, emailing or accessing other smartphone or
internet-based features. Yet most employers do not have a longstanding
“distracted driving” policy but rather have just a hands-free-mobiledevice-use policy. If they have a policy at all.
A Look In The Rearview Mirror
The laws related to the use of mobile devices while driving provide
an interesting example of how law – and employer policy – often lag
behind developments in employee behavior in the workplace. Mobile
phones have been available since the early 1970s and readily available to
the masses since the early 1990s. By 2002, almost half of the U.S.
population owned a cell phone. As of May 2013, 91% of American adults
had a cell phone and over half were smart phones.
Clearly, for many years, employees have been using cell phones for
work or personal business while driving. Yet, until 2001, no state had a law
regulating the use of cell phones while driving. New York began the tidal
wave of legislation related to the use of cell phones while driving and now
all but a few states have at least some limits on cell phone use or texting
by at least some drivers (such as young drivers or bus drivers). Yet only
about half of all employers have a policy directing employees to use
hands-free devices and not to text while driving.
What Makes The New Distractions Different
Cell phone usage and texting are verifiable. When an accident occurs,
records exist that verify whether a driver was using a cell phone. Multiple
studies have validated that cell phone usage while driving (even
hands-free) drastically increases the chance of an accident. In our legal
system, such “proof” means trouble for the user of the cell phone and the
user’s employer if the user was either conducting work on the cell phone
or driving for work – regardless of who owns the vehicle or the phone.
Of course in accident lawsuits, the use of a cell phone can cut both
ways. Traditionally, we think of a driver being liable for an accident while
using a cell phone but there are plenty of cases where injured pedestrians
or persons not directly involved in the accident still share in the liability
because they were using a cell phone and were not fully aware of
the environment.
Our Advice
Most employers likely have “made do” with a common sense,
unwritten policy of “drive safely” for many years. Now, most recognize
that they should have had a distracted driving policy or at least a hands-free
© 2014 Fisher & Phillips LLP
policy. For an employer just now developing a new policy, the policy
should be broad enough to cover all forms of distracted driving and not
just limited to hands-free requirements. Most importantly, the policy should
be practical and enforceable.
While what is “practical and enforceable” may vary by industry and
the types of workplace driving that occur, you should require your
employees to comply with any applicable state law. In addition, the policy
should encourage employees not to engage in any form of distracted
driving and offer basic alternatives like “pull over” or “wait until you get
back to the office.” The policy should clearly tell employees that you do
not expect the employee to engage in work – other than safe driving – while
driving.
Next, decide what level of compliance you are ready to enforce at all
employee levels at all times. The worst policy an employer can develop is
one that says “never ever engage in any form of distracted driving or you
will be terminated immediately.” While such a policy might be
theoretically perfect, it is practically imperfect. Some form of distracted
driving is inevitable and immediate termination may not be the answer.
The worst possible scenario is an employer who sets a very high bar but
fails to enforce the high bar and then has an employee who injures
someone. In that case, the employer’s policy will hurt more than it helps.
But the solution is not to avoid developing a policy. The solution is to
develop a policy that works for your industry and your drivers and is a
policy that you can enforce. If you’d like our help in developing such
a policy, just let us know.
For
more
information
contact
JSandberg@laborlawyers.com or 404.231.1400.
the
author
at

2. Termination May Not End It
By Tillman Coffey (Atlanta)
Webster’s Dictionary defines “termination” as “the act of ending” or
“the end.” In the employment context, “termination” often is intended to
be the end of the employment relationship. Perhaps the employee caused
problems with coworkers, was an underperformer, violated company
policies, or all of the above. Although terminations generally are stressful
and unpleasant experiences for all, employers hope that this change will
eliminate problems.
Unfortunately, an employee termination can be the source of a new
problem for the employer and the beginning of another relationship
between the employer and the now former employee. The former employee
may file a wrongful termination claim alleging that his former boss and
employer did something wrong. The employer’s “wrongdoing” may be as
simple as failure to take consistent disciplinary action or the timing of the
termination itself.
While it’s often true that the employee “should have been terminated
a long time ago” (or should have never been hired, as is often lamented),
bad timing and inconsistency often overshadow bad performance and
conduct and increase the chances that termination will not be the end.
Take A Second Look
Many terminations result from a manager’s emotional response to a
situation or series of situations. When emotions or the exhaustion of
patience take over, risks associated with terminations increase. Some
decisionmakers do not recognize these risks while others downplay
them based on an over-reliance and likely misunderstanding of the
employment-at-will doctrine.
Under that doctrine, employees not employed for a definite time
pursuant to an agreement can be terminated without cause or notice.
On its face, this doctrine seems to make employers practically bulletproof
because the vast majority of employees are employed at-will. But the
at-will armor is far from impenetrable, as almost all wrongful-termination
charges and lawsuits are filed by employees who were employed at-will.
Raising the at-will doctrine as a defense to these claims generally goes
nowhere fast.
Most wrongful discharge claims are brought in the form of a
discrimination or retaliation claim or both. In a typical discrimination
claim, the allegations are that the employer treated the fired employee
differently than another employee who engaged in the same or similar
misconduct or had the same or similar level of performance.
The dispute in the lawsuit generally is not whether the fired employee
engaged in misconduct or underperformed. Often those facts are conceded.
Instead, the dispute centers on the reason the employer did not terminate
others who engaged in the same conduct. The former employee will allege
that the reason for the different treatment was race, sex, religion, age, etc.
By way of example, an employer fired an African-American employee
after the employee wrecked a company vehicle. On the surface, this
termination decision seems like a no-brainer, especially since the employee
was “at-will.” The employee never denied wrecking the vehicle, even
when he filed his lawsuit alleging race discrimination. His theory was that
the employer had not terminated non-African American employees who
also had damaged company property. In other words, his allegations were
that the employer treated him differently because of his race. Whether or
not race was a reason for the alleged difference in treatment will now be
decided by a jury.
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© 2014 Fisher & Phillips LLP
Retaliation
Retaliation claims take a similar route to the courthouse. Many
employment laws include anti-retaliation provisions. For example, FMLA,
OSHA, the FLSA, workers’ compensation laws, and the anti-discrimination
laws, among others, all prohibit employers from retaliating against
employees who exercise their rights under these laws. The exercise of these
rights is called engaging in “protected activity.” An employer that
terminates an employee for engaging in protected activity risks having to
defend a difficult lawsuit. In the last few years, there have been
more EEOC charges alleging retaliation than any other category of
discrimination.
To illustrate how retaliation claims come to life, suppose you want to
terminate an at-will employee for excessive absenteeism. With accurate
Continued on page 4
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3. Tenth Circuit Rules On “Termination By
Committee”
By Greg Ballew (Kansas City)
On January 21, a federal appeals court addressed whether an
employee terminated by group decision (six managers) can be considered
“similarly situated” to employees who were disciplined less severely by a
different decisional group, consisting of some but not all of the same
managers. Reversing the summary judgment decision of a Wyoming trial
court, the U.S. Court of Appeals for the 10th Circuit stated:
Although there is no clear legal rule as to how much overlap is
needed among decision maker groups for employees to be
similarly situated, requiring absolute congruence would too
easily enable employers to evade liability for violation of
federal employment laws. The district court erroneously…
insist[ed] that the composition of the decisionmaker groups be
precisely the same in every relevant disciplinary decision. We
disagree because there is more than enough overlap to conclude
the employees identified here were similarly situated to
[employee].
The 10th Circuit cited the fact that five of the six decision makers who
terminated the employee also participated in at least one decision in which
a similarly situated employee was treated more favorably after violating
the same or comparable safety rules. The 10th Circuit covers the states
of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Smothers v. Solvay Chemicals, Inc.
Facts
Steven Smothers, a maintenance mechanic for a chemical producer
at a Wyoming facility, suffered a neck injury in 1994, which led to
degenerative disc disease and a number of surgeries and medical
procedures. The employer, Solvay Chemicals, granted Smothers’ request
for intermittent leave under the Family and Medical Leave Act (FMLA)
because of the related conditions. According to the district court’s opinion,
“Some of Smothers’ work partners and supervisors complained about the
hardship created by Smothers’ work absences,” and the superintendent
asked Smothers if he would work days when more employees were
available to cover his work if he were absent. Smothers declined.
In 2008, Smothers proceeded to remove a part connected to a
hydrochloric acid pump without following the employer’s “lockout” safety
procedure. A coworker offered to assist Smothers with the repair, but
Smothers declined the assistance and engaged in an argument with the
coworker. The coworker complained to a manager about Smothers and
Smothers subsequently admitted to removing the pump piece without
following the appropriate safety procedure.
Smothers, who had been employed for eighteen years, was terminated
for the safety violation and the dispute with the coworker related to the
safety violation. The decision to terminate was the result of a decision by
a group of six managers.
The employee filed suit against the employer claiming that the
termination violated the Americans With Disabilities Act (ADA), was
retaliation in violation of the FMLA and also violated state law (breach of
implied employment contract). The employee claimed the real reason for
the termination was unlawful retaliation and discrimination; i.e., that the
employer had grown frustrated with his use of intermittent FMLA leave
for a condition which also qualified as a disability under the ADA.
In support of his claims, Smothers argued that other workers had
engaged in safety violations of comparable seriousness (failure to follow
the lockout procedure) but had not been terminated. The employer
countered that those employees were not similarly situated to Smothers
because the decisions as to discipline involved different decision makers.
The employer moved for summary judgment The federal district court
for the District of Wyoming granted the employer summary judgment on
all three of Smothers’ claims. As to the ADA claim, the district court found
Smothers was not disabled, but also concluded that, as to the ADA and
FMLA claims, there was insufficient evidence of pretext, rejecting
Smother’s similarly situated argument and stating,
Pretext cannot be inferred where one supervisor treats an
employee one way and a different supervisor (or group of
supervisors) treats another employee a different way given that
a supervisor or a group of supervisors may see safety infractions
differently.
The district court also found that the violations committed were not
comparable. Smothers appealed.
The 10th Circuit’s Decision
The court of appeals reversed the district court’s grant of summary
judgment, noting that there was evidence that other employees were treated
more favorably after committing serious safety violations.
The employer argued that the comparators cited by the employee as
having been treated more favorably were not similarly situated because
different decisionmakers were involved in determining the appropriate
discipline. The employer, who uses group decision making to determine
discipline for safety violations, argued that the composition of the group
that terminated Smothers was different from the composition of the group
that disciplined other employees Smothers identified as treated more
favorably.
The 10th Circuit rejected this argument, pointing out that five of the
six decisionmakers who terminated the employee also participated in at
least one decision in which an employee was treated more favorably after
violating the same or a comparable safety rule. In a footnote, the 10th
Circuit also stated it was undisputed that the site manager was the
ultimate decision maker in all discipline cases, but that its conclusion “did
not rest solely on [the site manager’s] role because he was many levels
removed from Mr. Smothers’ direct supervisor.”
The 10th Circuit concluded that the district court erred by “insisting
that the composition of the decision maker groups be precisely the same in
every relevant disciplinary action.” The Court found that there was
“more than enough overlap” to conclude that the employees treated more
favorably were similarly situated.
Thus, the court of appeals found that the employee established a
material question of fact as to whether he was punished more harshly than
similarly situated employees after comparable safety violations and as to
whether the stated reason for firing him was a pretext. And the court
concluded, “the showing of pretext for purposes of the FMLA claim
extends to the ADA claim.”
Continued on page 4
© 2014 Fisher & Phillips LLP
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4. If termination has not always been the company’s response, then
ask yourself if there is a legitimate way to distinguish this
situation from the others. If not, termination should wait;
Termination May Not End It
Continued from page 2
records establishing attendance policy violations, this decision also appears
on the surface to be a no-brainer. But what if that same employee had
recently complained about harassment or discrimination, or made a safety
complaint, or filed a workers’ comp claim, or recently requested or taken
protected leave?
And, what if that same employee had a terrible attendance problem
that went unaddressed before he engaged in protected activity, or you have
other employees with similar attendance issues that have not been
terminated? These facts may suggest that something other than attendance
was the real reason for the termination decision. If you still terminate the
employee under these circumstances, the only no-brainer is that you may
have a chance to explain your thought process and rationale in a legal
forum.
Making Goodbye Mean Goodbye
While not all wrongful termination claims can be avoided,
employers can take some relatively simple steps to increase the chances
that the termination will be the end:
•
•
Slow down and think before pulling the trigger on a termination.
Involve someone else, e.g. Human Resources, who does not have
an emotional investment in the situation. That person likely will
have a more objective assessment and see things you may have
missed;
Ask yourself, is the action we are about to take consistent with
our previous actions? Review what you have done in the past
when faced with these facts or this situation or one similar to it.
The Labor Letter is a periodic publication of Fisher & Phillips LLP and should
not be construed as legal advice or legal opinion on any specific facts
or circumstances. The contents are intended for general information
purposes only, and you are urged to consult counsel concerning your own
situation and any specific legal questions you may have. Fisher & Phillips LLP
lawyers are available for presentations on a wide variety of labor and
employment topics.
•
Ask yourself, has this person recently made a complaint, taken
leave, requested leave, been involved in an investigation of
misconduct or done anything else that would qualify as protected
activity? If the answer is yes, ask yourself if your reason for
termination is on solid ground. Hint: if you are using a dustcovered rule violation or performance standard as the basis for
the termination decision, you may want to wait;
•
Ask yourself, will the employee be surprised at the termination?
A termination decision should never be a surprise. Either the
terminable offense is one that no employee could reasonably
expect to get a second chance, therefore not a surprise, or
the employer has diligently documented counselings with
the employee that include the warning that continued non-compliance will result in further disciplinary action, up to and
including discharge, thereby eliminating the surprise element;
•
Treat the employee with dignity and respect during the
termination process, the same as you would expect to be treated.
Being a jerk because you can be may make you feel good but
also may give a recently terminated employee a reason to seek
revenge;
•
Seek legal counsel before making a risky termination. The cost
of this advice will be money well spent if it helps you avoid an
expensive legal challenge.
With patience and consistent actions, and perhaps a little
guidance, employment terminations can actually be the end of the
relationship.
For
more
information
contact
TCoffey@laborlawyers.com or 404.231.1400.
the
author
at
Tenth Circuit Rules On “Termination By Committee”
Office Locations
Continued from page 3
Atlanta
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What It Means For Employers
Employees may show that an employer’s defense is a pretext by
providing evidence that they were treated differently from other
similarly-situated, non-protected employees who violated a work rule
of comparable seriousness. To be “similarly situated,” the comparator
employee must share the same supervisor or decisionmaker. As the 10th
Circuit noted, “This is because different treatment by itself does not
always indicate pretext.”
Employers often cite the fact that different decisionmakers were
involved in a discipline decision to show that an employee is not
“similarly situated.” That argument is often persuasive when a single
decisionmaker is involved in a disciplinary decision.
But this case clarifies that, where employers use group decision
making to determine employee discipline, an employee need not show
“absolute congruence” of the decision-making groups in order to show that
another employee is similarly situated for purposes of making a pretext
argument under the FMLA or ADA.
Fort Lauderdale
phone 954.525.4800
www.laborlawyers.com
Fisher & Phillips LLP represents employers nationally in labor,
employment, civil rights, employee benefits, and immigration matters
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© 2014 Fisher & Phillips LLP
For
more
information
contact
GBallew@laborlawyers.com or 816.842.8770.
the
author
at