Posted on November 22, 2011 by Marylee Abrams

Employer Checklist: How to Make Tough Employee Discipline Decisions

What should I do about a problem employee? Train, transfer, or terminate? Many of our clients struggle with assessing employee misconduct, and knowing how to make good employee discipline decisions. Making the wrong decision can be costly, embarrassing, and damaging to workplace morale. Too harsh of discipline can be just as bad as ignoring misconduct. The goal for all employers should be to reach a reasoned decision, and mete out just the right discipline based on the facts, the record of the employee, and the practices of the workplace.

I am speaking at the Association of Minnesota Counties Annual Conference on December 5, 2011, on employee discipline. The subject of my presentation is “How to Lose a Discipline Grievance.” Most of our public sector clients deal with unionized employees who have grievance arbitration rights to appeal discipline decisions. Arbitration challenges mean an employer’s discipline decision will be carefully scrutinized, and will be subject to testimony and evidence before a neutral arbitrator.

The materials I prepared for the presentation include a checklist for employers. It is designed to be used when facing an employee discipline decision. It covers a wide range of things to consider from the quality of the investigation, to the employee’s personnel record, and the history and practice of the individual workplace. The checklist is based on a review of approximately 40 termination arbitration decisions posted by the Minnesota Bureau of Mediation Services in 2011. Approximately 20 of the termination decisions were sustained, and the other 20 were overturned and a lesser form of discipline was issued by the arbitrator. I paid special attention to the 20 terminations overturned by an arbitrator. The raw numbers indicate about half of the termination decisions were overturned in 2011. A 50-50 success rate is unacceptable, costly, and leaves much room for improvement.

Making an employee disciplinary decision can be difficult, but following good employee management practices can remove some of the guess work. The goal for every employer should be to make defensible decisions which will withstand outside scrutiny. Start with this checklist and seek legal advice when there are questions or uncertainty.

 

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Posted on November 17, 2011 by Tiffany Schmidt

Whining, Sniveling Employee or Protected Concerted Activity?

Earlier this fall, my law partner, Marylee Abrams, blogged about several decisions issued by the National Labor Relations Board (NLRB) concerning employee’s use of social media. The NLRB decisions thus far have been very fact specific. Many of the cases have determined the employee’s use of social media was “protected concerted activity” under the NLRA, and therefore protected speech.

Now, employers not only have to worry about what employee’s say about them on Facebook and Twitter, but employees are using the internet to start online petitions to try to influence business decisions. Earlier this month, Anthony Hardwick, a part-time cart attendant with Target in Omaha, Nebraska started an online petition requesting Target Corp. push back its midnight opening on Black Friday to 5 a.m. Mr. Hardwick alleges, “A midnight opening robs the hourly and in-store salary workers of time off with their families on Thanksgiving Day. . . A full holiday with family is not just for the elite of this nation -- all Americans should be able to break bread with loved ones and get a good night's rest on Thanksgiving!” As of today, more than 157,000 people have signed this online petition. Target isn’t the only retailer store who is opening at 12 a.m. on Black Friday; Best Buy Co., Kohl’s Corp. and Macy’s are also opening stores at midnight, and other businesses, including Wal-Mart Stores, Inc. and Toys R Us are opening even earlier than midnight.   Petitions similar to the one started by Mr. Hardwick have been started on the Change.org website with the intent to pressure other retailers such as, Best Buy, Old Navy, Macy’s and Wal-Mart to name a few from opening so early.

A Minnesota Target Corp. spokesperson has indicated, Mr. Hardwick is not scheduled to work on Thanksgiving or Black Friday, because he had advised his supervisors earlier this month he was scheduled to work at his full-time job on Black Friday, and needed the day off from Target. Target honored his request.

Target, Best Buy, and the other businesses whose employees have started online petitions against them need to be very careful on how they react to these internet petitions and how they treat the employees who started the petitions. The NLRB could very easily consider these petitions to be “protected concerted activity.”

On the other hand, employees like Mr. Hardwick need to realize they work in retail, and working in retail results in you having to work on holidays. Additionally, there are many other jobs, such as utility workers, hospital personnel, paramedics, fire fighters, law enforcement, jailers, 911 dispatchers, United States military personnel, who are required to work on a holiday, and they don’t get to “break bread with loved ones and get a good night’s rest.” Thankfully, you don’t hear them complaining about it. Thank you to those hard working individuals who are willing to give us their holidays to keep my family and the rest of us cared for and safe!
 

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Posted on November 11, 2011 by Tiffany Schmidt

Veterans Have Extra Rights, But Still Need to Do Their Job

Recently, Arbitrator James Scoville agreed a Minnesota employer was free to terminate a Veteran because of the Veteran’s departure from the Employer’s driving principles. Under Minnesota law, a public employer cannot terminate an honorably discharged Veteran without a Veteran’s Preference Hearing. (Minn. Stat. 197.46.) A Veteran’s Preference Hearing may occur before a Veteran’s Board or Panel. Until the Board or Panel issues a decision, the Veteran remains in a paid status with full benefits.

In the case before Arbitrator Scoville, a six year employee of the Minnesota Sex Offenders Program was terminated because of two separate incidents which occurred in June 2011. Both incidents involved the Veteran’s inappropriate responses to Incident Command System Calls. In addition to the 2011 incidents, the Veteran had a discipline record of five separate disciplines in 2010 ranging from an oral reprimand to a 5-day suspension due to unauthorized absences. Arbitrator Scoville found the June 2011 incidents were radically different than the attendance issues in 2010, and the Veteran’s actions departed from the driving principles of the Minnesota Sex Offenders Program. Additionally, each incident came a day after the Veteran was coached about his job performance.

In this case, the Employer did the right thing. They tried corrective actions by coaching and counseling the employee and progressive discipline before resorting to termination. The Employer also documented their actions. Veterans deserve to be thanked for all they do for us, but they aren’t entitled to a free pass when it comes to doing their job. Arbitrator Scoville made the right call here.

Remember to thank a Veteran today!

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Posted on November 10, 2011 by Marylee Abrams

More Than Sandwiches Being Served At Jimmy John's

Jimmy John’s is well known for their quick sandwich delivery service, eclectic restaurants, and fresh ingredients. Now, they are also known for violating employee rights to organize and join a union.

The NLRB reported the Industrial Workers of the World union tried organizing employees at 10 Jimmy John’s locations in Minneapolis, Minnesota, but lost the election by a vote of 87 to 85. The union filed an unfair labor practice alleging 6 employees of Jimmy John’s were unlawfully disciplined, threatened, and ultimately terminated for engaging in protected union activity.

Many employers are stumped about what to do when employees begin talking at work about bringing in a union. It is clear from this case the wrong thing to do is to take any reprisals against any employee who is engaging in union organizing activity. Some of the union activities raised in the Jimmy John case included, "Disparaging and threatening pro-union employees on Facebook, removing union postings from stores, interrogating employees about their union activities, and threatening mass firings for union organizing."

An informal settlement was approved by the NLRB which provided for a new union election if the union chooses to pursue one in the next 18 months. The employer agreed not to discipline or threaten employees and not to withhold raises due to a union campaign. The settlement agreement must be posted at work areas and must be read to employees either by the company president or by an NLRB employee in the presence of the company president.

Union organizing talk at work is protected activity. Seek legal counsel if employees are contemplating joining a union, to learn about your rights as an employer.

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