Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Photo by:  Gregoria Borgia

If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.

In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival.  According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.

I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have.  Discipline for violation of company policies is meant to correct employee behavior.  Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures. 

As a Minnesota resident, my thoughts and prayers go out to all the families involved in this crash, especially, the Heil family of White Bear Lake, who is still waiting for word on their missing parents.
 

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There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union's grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.

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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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