Employers Can Still Terminate Pot-Smoking Employees in Colorado

The recent legalization of recreational marijuana in Colorado has been all over the news.  Articles have reported on the law legalizing recreational possession and use of marijuana by adults; the expected tax revenues to the state of Colorado through the sale of legal marijuana; and some have offered commentaries on the social impact of the new law.  But no one has reported on the impact on workplaces until now, which naturally comes to my mind as an attorney representing employers.

The Denver Post finally addressed a little known section of the new law which provides that nothing in the new law will “affect the ability of employers to have policies restricting the use of marijuana by employees.” This is particularly true of those employers who have drug-testing policies in place covering safety sensitive employees such as bus drivers, police officers, or pilots. Due to the fact marijuana metabolites can remain in the blood stream for weeks, an employee in Colorado could legally use marijuana while off work, then fail a drug test required by their employer, and be terminated from employment.

I expect Colorado employers are scrambling right now to review their drug testing policies to determine how they fit with the new law. They also should inform employees of the potential negative impact on continued employment, if they fail to pass a required drug test. Another complication is the fact marijuana is still illegal under federal law. I will be keeping my eye on new developments as the legal system has time to catch up with the new law.

Liar, Liar, Pants on Fire: Paid Liar Dupes Employers!

Photo by Evan Amos.By: Evan Amos                       Employers have probably heard every goofy excuse for being sick or unable to come into work. My favorite was used by a friend of mine years ago, who at the time lived in downtown Chicago. She called her manager and explained she couldn’t make it in to work because a polar bear had escaped from the zoo. Her employer didn’t believe her until he turned on the local news and yes, there was an escaped polar bear, and no she was not lying. The bear was eventually recovered in her neighborhood.

We have consulted with our clients about their employee absences/excuses, and just when I thought I heard it all, along comes an article in the Pioneer Press about a paid liar who is being used by job-seekers and employees to lie to their employers. Tim Green, owner of Paladin Deception Services charges $54.00 a month to construct a lie, answer a phone call, or send an email. He not only dupes employers checking job references, he provides “disinformation” about an employee’s need for a sick day as well. Since opening his liar business in 2009, Green has had about 250 clients on an on-going basis, and employs five people to help him with his “scenarios.”

With the assistance of technology, he can provide a phone number with any area code. “That would make it possible, for example, for a business in Atlanta to call a number with an Atlanta area code. “ One of Green’s five employees would then answer an in-coming phone call, and pretend to be an Atlanta business or doctor. He also provides bogus emails, and has even posed as a funeral home manager to verify an employee attended a funeral.

Employers, I am scratching my head over this one. Be forewarned! Don’t underestimate the lengths a job-seeker or employee may go to in order to cover up the truth.

Don't Ignore Problem Employees and Hope They Go Away

Last week, I looked out my office window and noticed all kinds of icicles hanging off the roof. One was particularly large, and grew even larger this week with the melting and re-freezing common in Minnesota in February. I nicknamed it, “The icicle of death.” I decided it probably wasn’t a good thing to have hanging off the roof, so with the help of my law partner, Marylee, we removed the window screen and knocked down the 6 foot behemoth.

 A problem employee can be a lot like that big icicle. He or she starts out causing small problems at work. The employer hopes it will get better and takes no steps to address the small problems. Eventually, the employee starts causing big problems that branch out and affect other employees at the business. When the employer decides they need to take some action, they may be limited because they have done nothing previously.

Employees should be put on notice when they are doing something inappropriate or against policy. If an employer turns a blind-eye to the small issues, eventually it grows to be a larger issue, requiring more time, expense, and trouble than if the problem was constructively addressed early.

“The icicle of death” would have eventually disappeared on its own in about 6 or 7 weeks with the coming of spring. In the mean time I have no idea what type of damage it could have caused to the roof and eaves. By dealing with the icicle now, I prevented future damage to my office suite. If businesses don’t address employee problems when they are small, damage is likely to result. Don’t ignore problem employees and hope they will disappear, address issues as they arise.


Having a Plan When Terminating an Employee Minimizes Risk

September 27, 2012 Accent Signage terminated problem employee Andrew Engeldinger. He then went out to his car where he retrieved a gun, and proceeded to shoot and kill six 6 people at his workplace, and seriously wound another.

The family of slain Accent Signage employee Jacob Beneke filed suit in Hennepin County District Court on Friday, alleging the shooting was “…reasonably forseeable based on past incidents of employment misconduct and a known propensity for abuse and violence.” The suit alleges Accent Signage was grossly negligent, faulting the employer for not having security cameras or security personnel present during the termination meeting. I certainly think the Accent Signage case will be dismissed, as the facts simply seem too speculative.

The Company had previously cited Mr. Engeldinger for misconduct including offensive behavior, tardiness, and poor job performance. He was told management wanted to meet with him at the end of the work day. Following the meeting, Mr. Engeldinger retrieved the gun from his car.

Unfortunately, terminations are becoming more volatile. At my firm we have assisted a number of clients develop a strategic plan for the termination process. Depending on the facts and circumstances, elements of the termination plan include:

  • Consult with local police and advise them of the timing of the termination notice and the specific basis for concern;
  • Obtain a Harassment Restraining Order;
  • Consult with IT to anticipate technology and password issues;
  • Review Employee Handbooks or Policy and Procedure Manuals;
  • Consider timing options, i.e. when to deliver the news;
  • Develop a checklist to make sure all property, keys, etc. are returned;
  • Make arrangements for a courier service to return personal belongings to the employee; and
  • Conduct a threat assessment.

Safety of employees always comes first, followed by protection of business interests and assets. Developing a strategic plan can go a long way to minimize the potential risk possible in an employee termination.  The present law suit should serve as a red flag to remind employers to review their termination strategies.  



Recommended: Early Intervention with Problem Employees

Lately, there have been a lot of stories in the news about shootings, in schools, malls, movie theaters, and workplaces. In Minnesota this past September, Andrew Engeldinger, was terminated from Accent Signage. He then proceeded to pull out a gun and killed five co-workers and a UPS delivery man, before killing himself. In personnel documents released this week it was shown the week prior to his termination, Mr. Engeldinger received a warning for being chronically late. In fact, he had been late for 35 consecutive work days starting in August. He had also been cited for tardiness issues back in 2011 due to another string of late arrivals to work. He was given several warnings and provided an opportunity to correct the behavior. Apparently, it was successful for a period of time, but for reasons unknown to anyone, Mr. Engeldinger returned to being tardy again in the late summer of 2012.

Of course, hindsight is 20/20 and we don’t live in a world where we get a “redo”. However, we are able to learn from others. In this case, perhaps Accent Signage could have talked to Mr. Engeldinger sooner, rather than waiting for 35 consecutive workdays of arriving late for work. Instead of just giving him a warning, perhaps talking to him to find out if something was wrong that they could assist him with could have made a difference in the final outcome. Clearly, Mr. Engeldinger was a troubled soul. Perhaps with early intervention and a more personal route to try and find out what was causing Mr. Engeldinger to be consistently tardy, the tragic events that occurred there in September could have been avoided.

If you have an employee who is chronically late, absent or performing poorly, make sure you take steps to intervene and address the behavior early to see if you can get the employee some assistance. Remember your biggest assets are your employees.

A Toolbox for Management- Part 2: Coaching and Counseling Employees

We frequently assist employers with employee performance issues including attendance problems, poor attitudes, unprofessional attire, and acts of misconduct. Dealing with employee performance issues can be very difficult for employers. Some of our clients are conflict averse and would much rather ignore the problem, hoping it improves on its own. Some are frustrated and don’t know what to say to an employee. Without intervention, the employee problem generally gets worse and can poison a workplace.

Effectively coaching and counseling employees is a crucial management tool. It takes some practice, but is definitely worth the time and effort. Employees are best held accountable if they have been told what is expected of them. Prior notice is key, if the conduct persists and an employer wants to follow up and issue any disciplinary consequences.

George Bernard Shaw, Academy award winning Irish playwright, once said, "The single biggest problem in communication is the illusion that it has taken place." This is especially true for employers. So, how do you coach an employee, and communicate a problem in a diplomatic way that the employee can understand? You follow a simple plan:

  1. Arrange to speak to the employee in private, to avoid embarrassment.
  2. In a professional tone, identify the problem in specific terms.
  3. Explain how the problem impacts the workplace, co-workers, violates workplace policies etc…
  4. Encourage the employee to acknowledge or express an understanding of the problem.
  5. Outline specifically what the employee needs to do differently in the future.
  6. Follow-up later with the employee to insure the necessary changes have taken place.
  7. Don’t forget to document, document, document.

Let me share an example. Consider the common scenario of an employee who arrives late to work for the second time during the work week.  The employer's script goes like this:

  • “I wanted to speak to you about being late to work. This is the second time this week that you have been late.”
  • “When you are late, it causes someone else in the department to answer the phones.”
  • “Can you see how this can cause difficulties for others who also have their own work to complete?”“
  • Let’s talk about what you can do to get to work on time. We are relying on you to be here on time. Do you have any ideas?”

Document the coaching session, and then monitor for change. Pay attention to the employee’s efforts and offer positive comments the following week when you notice the employee is on time to work.

  • “Thanks, being on time really helps things run smoothly in the department.”

If the conduct does not improve, additional coaching may occur or other alternatives such as training or discipline may follow depending on the specific circumstances. Timely coaching of employees is an important management tool, and a first step to effectively supervising employees.

Dirty Little Secrets Of The Secret Service

The secret is out on the Secret Service. The sex scandal involving 11 Secret Service agents, 2 of which are supervisors, and 10 military personnel surfaced when a dispute over payment of a Columbian prostitute resulted in a call to Cartagena police, who then contacted the U.S. Embassy, and the story went viral from there.

It is never a good sign when supervisors are found engaging in misconduct along with subordinates. It has been my experience when that happens there is a much larger problem which extends to the underlying workplace culture. It has also been my experience with workplace misconduct that this was likely not the first time Secret Service Agents engaged in risky behavior and trysts with prostitutes. There were just too many agents involved and the behavior too overt to conclude otherwise. News reports have indicated there were at least 20 prostitutes involved in the scandal, indicating this was pretty wide-spread.

We have heard little from the agents themselves other than one news report which indicated, "...some of the men stated they did not know the women were prostitutes.” Instead of well-trained security specialists, charged with protecting the President of the United States, they sound like frat boys who got caught with a woman in their room after hours, except the possible ramifications go way beyond loss of frat membership or suspension from a sports team. ABC News reported, “On Wednesday, the chairman and ranking Democrat on the House Committee on Oversight and Government Reform, Rep. Darrell Issa, R-Calif., and Rep. Elijah Cummings, D-Md., wrote to Mark J. Sullivan, the director of the U.S. Secret Service, about potential security concerns. "The incident in Cartagena is troubling because Secret Service agents and officers made a range of bad decisions, from drinking too much, to engaging with prostitutes, to bringing foreign nationals into contact with sensitive security information, to exposing themselves to blackmail and other forms of potential compromise."

Director Mark Sullivan appears to have acted swiftly and done the right thing by immediately removing the agents from Columbia, suspending their security clearance, and placing them on administrative leave pending a thorough investigation. Based on evidence already collected 3 agents have reportedly been forced out through early retirement, resignation, and proposed termination.

Something went terribly wrong, and the secret is now out of the bag. Between the White House investigation and Congressional hearings, this story will continue to unfold in the months to come. Managers should get beyond the "What were they thinking?" response, and be actively aware of workplace culture.   


The Vikings Were Robbed or Employment Sanctions in the NFL

I remember the 2010 Vikings and Saints NFC Championship game like it was yesterday. I was at my cousin Vicki’s house with my extended family, glued to the big-screen television, hoping Brett Favre would lead the team to the Super Bowl. We have had quite a long dry spell in Minnesota, since the days of Coach Bud Grant and the Purple People Eaters. The 2009 season was like a fairytale, and we were so hopeful to break the Super Bowl curse plaguing our team.

My vivid memories of the game are still quite visceral, and were shared by all those who watched the slaughter with me. We all cringed and groaned each time the Saints wiped Brett Favre off his feet. We shouted and shook our fists in the air, wondering whether the referees were seeing the same viciousness we were, and each time Favre got up and staggered back to the line. The camera panned to Favre’s wife and daughter in the box seats, and we knew things were bad. It is only now we know the brutal hits were part of a bounty system. 

The Saints team culture had completely lost focus on the game of football, and thrown out the gentlemen part of sportsmanship. In place was a pay for performance system, rewarding players for vicious hits on opponents.  The Pioneer Press reported Saints players were paid, “$1,500 for knocking someone out of the game, $1,000 for getting a player carted off the field.”

Football is big business. I am glad to see NFL Commissioner Roger Goodell took the problem seriously by investigating the allegations and issuing the largest fines and sanctions in NFL history. The Saints conduct clearly warranted serious sanctions, and perhaps even a criminal investigation. This is supported by the fact “…the Saints lied in what the league called a deliberate effort to conceal the program’s existence from league investigators and had a clear determination to maintain the program.” I suggest the sanctions meted out should have included taking away the 2009 Super Bowl win from the Saints as well.

In my law practice, I advise employers to carefully consider the actions of employees before administering any discipline, taking great effort to make sure the “punishment fits the crime.” Discipline should be designed to correct behavior and insure it does not happen again. I am waiting to see the discipline issued to individual Saints players who participated in the bounty system.  

In the case of the Saints, stripping them of their 2009 Super Bowl win, in addition to the other sanctions issued against the team, and coaching staff will go far to insure the bounty system will not ever happen again. In the end the Vikings were still robbed, at least the robbers are paying for their misdeeds.

Train, Transfer, or Terminate: What To Do About Employee Misconduct?

Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.

Public Employers May Place Criminally Charged Employees on Unpaid Administrative Leave

Photo by: Klaus

In an arbitration award issued late last year by Arbitrator Stephen F. Befort, the Minneapolis Special School District # 1, argued it was justified in placing a teacher on an unpaid administrative leave while criminal charges of third degree assault were pending against the teacher. Ultimately, the teacher pled guilty to the third degree assault charges, and the school district terminated his employment for conduct unbecoming a teacher.

The Minneapolis Federation of Teachers Union filed a grievance claiming the school district violated state statute and the collective bargaining agreement, when it placed the teacher on unpaid administrative leave prior to his discharge. Arbitrator Befort determined the state statute wasn’t applicable in this case, and the collective bargaining agreement was unclear. He relied on the parties past practice, which showed over the years the school district had previously placed 25 employees charged with criminal offenses on unpaid administrative leave, in accordance with district policy. Five of those previous employees were members of the Minneapolis Federation of Teachers and no grievances were raised in those cases.

An interesting aside that wasn’t raised by the school district in this case but could have been, is the United States Supreme Court case of Gilbert v. Homar. The Court ruled, “[t]he State has a significant interest in immediately suspending employees charged with felonies who occupy positions of public trust and visibility, such as police officers. While this interest could have been accommodated by suspending respondent with pay, the Constitution does not require the government to give an employee charged with a felony paid leave at taxpayer expense…”

Public employers should consider the option of placing an employee charged with a felony on unpaid administrative leave while determining how to proceed with the employee’s future employment. Taxpayers should not have to compensate an employee who is facing felony charges.

Brownie Defense Fails in Workplace Drug Testing Case

A warehouse fork-lift operator failed a random drug test, and was terminated from employment.  He worked for a beer and soft drink distributor, who had adopted a random drug testing policy for all safety sensitive positions.  At the hearing, the employee testified he had inadvertently ingested marijuana laced brownies at a private barbecue ten days before he was selected for the random drug test.  He stated he was unaware the brownies contained marijuana and ate “five or six brownies and that he felt fine afterward.” 

The Union argued the employee had an unblemished work history and that there was no requirement to terminate an employee who failed a drug test, only to remove them from a safety sensitive position.  They argued the employee had inadvertently ingested marijuana at a private picnic, and was never under the influence at work.

The Employer conceded, while they had not terminated all first time offenders of the policy, they had previously terminated three other first time offenders of the drug policy in the past 5 years.  The Employer argued the inadvertent consumption of marijuana defense was not credible, and was concocted in an effort to obtain unemployment compensation benefits.  The arbitrator agreed and found the testimony “neither credible nor plausible,” upholding the Employer’s decision to terminate.   

Throughout the decision, the arbitrator lays out facts which indicate the employer’s drug testing policy followed the requirements set out in state statute.  These include:

·         The employee had notice of the policy, having signed an acknowledgment form;

·         The employee was working in a safety sensitive position and therefore was subject to random testing;

·         The employee was provided an opportunity for a retest of the sample at his own expense; 

·         The employee was aware of the penalties which could be imposed for a failed drug test.

I have blogged in the past about how to adopt a drug testing policy which complies with state statute.  Employers who have adopted a drug testing policy according to state statute, will have a stronger case to support discipline for violations of the drug policy.  The union's brownie defense is half-baked and a travesty to chocolate confection lovers.  Shame on the union for throwing a gooey chocolate mess at the wall, to see if anything sticks.   Really, brownies are a dessert, not a defense.




Lying to Employees Can Hurt Employers

I must confess I told a little white lie to my 4-year old daughter about how the Easter Bunny was able to leave the eggs so high up on a shelf. I told her, bunnies can hop really, really high and that is how he was able to get it on the high shelf. She was pretty impressed with this feat by the Easter Bunny. In the employment setting though, lying is not recommended, not even little white lies.

Ms. Robin Shea with Constangy, Brooks & Smith LLP wrote an excellent blog on why employers should not tell little white lies to employees. I fully agree with everything she outlines in her post.
Ms. Shea states, “…it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. . . Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.”

Nothing is more difficult for an attorney than to try to defend a case against an employee, when the employee hasn’t been told the complete or accurate reason for their discipline or dismissal. It makes the job for the attorney more difficult, requiring them to play catch up. Employees have a right to know what mistakes they are making in order to have an opportunity to improve their performance. Notice is fundamental to establish a discipline case.

If you have an employee who is having performance problems, don’t let them think their performance is acceptable. Talk to the employee about the performance issues, and document the problems. This will help you and your attorney if any legal action is subsequently taken by the employee.

Drug and Alcohol Testing of Employees in the Workplace

You smell alcohol on an employee’s breath after lunch. What should you do? One of your staff is acting weird, and you suspect they may be smoking marijuana. An employee has a motor vehicle accident with a company car, and you suspect they were under the influence when they crashed. What’s an employer to do?

From experience, more and more employers are turning to drug and alcohol testing of employees as a means of screening new job applicants, and also being able to respond to chemical use and abuse of present employees. Minnesota employers can’t just act on suspicion that an employee was drinking alcohol or using drugs before coming to work. State statute governs drug and alcohol testing of employees in the workplace, outlining what, when, where, and under what circumstances an employer can test an employee for alcohol or drugs.

Before an employer asks a job applicant or an employee to submit to testing, they must have adopted a policy that fits within state guidelines, and the individual must be given a copy of the testing policy. The policy must set out:

  1. the employees or job applicants subject to testing under the policy;
  2.  the circumstances under which drug or alcohol testing may be requested or required;
  3. the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
  4. any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;
  5. the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and
  6. any other appeal procedures available.

Employers are required to use certified labs which meet minimum qualifications, and follow specific protocols. For example, a positive drug or alcohol test must also be subject to a confirmatory test. A job applicant or employee must be notified about a positive test result, that they have an opportunity to explain the positive test results, and that they can request a confirmatory retest of the sample, at their own expense.

“Safety sensitive” positions can be subject to random drug testing. Random drug and alcohol testing means the employer has initiated a testing schedule, whereby a random sample of employees are tested on a monthly or quarterly basis. Most employees however, are not considered “safety sensitive” and would be subject instead to a reasonable suspicion standard.  Reasonable suspicion means there is a “…basis for forming a belief based on specific facts and rational inferences drawn from those facts.” This may mean a car accident with the company vehicle, observation of behavior and an odor of alcohol on an employee’s breath, or the employee caused harm to another employee.

If the workplace is unionized, drug and alcohol testing must be negotiated with the bargaining agent. If there is no union, the employer is free to adopt a drug and alcohol testing procedure that meets the guidelines of Minnesota state statute. Most employers incorporate the drug and alcohol testing policy in their Employee Handbook.

To test or not to test, that is the question? If the answer is to test- then state statute needs to be followed.

Artwork by: http://www.mysafetysign.com/notice-signs

Employee Misconduct Is Not Always Easy To Detect

There are many different types of employee misconduct from insubordination to abuse of sick leave. Some employee misconduct is obvious. Insubordination is easy to uncover, because it doesn’t involve deceit, it involves an employee intentionally disobeying a superior.

Earlier this year, Britain’s Home Office UK Border Agency fired an immigration officer who used his security access to add his wife’s name to Britian’s ‘no fly’ database. The most interesting part of this story was the fact the immigration officer put his wife’s name on the list more than three years ago, after the wife flew to Pakistan to visit family, thus preventing her from being able to return to Britain. The immigration officer’s actions were finally discovered when he applied for a promotion and an updated background check was required. It revealed he was married to someone on a terrorist watch list. When confronted, he admitted he tampered with the list.

When you discover misconduct, even if it happened in the past, it is still important to act and investigate the misconduct.

Employee Performance Evaluations: The Do's and Dont's

Overrating an employee’s performance creates a Lake Wobegon effect in the workplace. Famed fellow Minnesotan, Garrison Keillor, begins his radio monologue on Prairie Home Companion with, “Welcome to Lake Wobegon, where all the women are strong, all the men are good-looking, and all the children are above average.” It is cute and very Minnesotan, and it works for a funny radio show; it does not serve employers well when conducting performance evaluations.

Some employers avoid performance evaluations altogether, deeming them unnecessary. If they are conducted, there is a tendency for employers to over-inflate the employee's performance, resulting in an inaccurate representation of the employee's strengths and accomplishments.  Inflating performance evaluations doesn’t give any guidance to the employee, or help document weaknesses. They are not constructive and are essentially a waste of time.The goal should be to create an accurate reflection of each employee's contributions to the workplace. 

Conducting accurate employee performance evaluations is critical for employers. It provides valuable feed-back to employees so they can change behaviors to meet the expectations of their employer. It also serves as valuable documentation for employers to support possible future disciplinary decisions, including termination from employment.  Many on-line resources exist that can help employers to conduct effective employee evaluations. The goal should be to create an accurate reflection of each employee's work performance.

• An evaluation on a regular basis. (Annually at least.)
• Accurately capture the good, the bad, and the ugly.
• Write in clear and concise language.
• Give the employee a copy.
• Include goals for the coming year.

• Inflate an employee’s work performance.
• Just focus on the bad things.
• Be general, instead make sure you include specific examples of behaviors.

Remember use the evaluation process as an opportunity to have a meaningful dialogue with an employee. The goal is to encourage productivity and improve employee performance, or in the alternative to document that adequate notice and opportunity was provided to the employee, to support discipline should the employee fail to make the necessary changes.


Garrity-What Is It And Why Does It Matter So Much To Public Employers?

Garrity refers to a 1967 United States Supreme Court decision that continues to be a mystery to many public employers. (pdf) It is a case they don’t teach in law school, and in fact it is unfamiliar to many city and county attorneys. It represents a very small niche in workplace investigations, but it can have a nuclear impact if the case is overlooked or misapplied, resulting in a criminal walking free. The principles of the case apply to all public employees who are the subject of an internal affairs investigation.

In Garrity, New Jersey police officers were ordered to answer questions as part of an internal investigation into allegations of traffic ticket-fixing. The police officers were ordered to answer questions asked by the internal affairs investigator, and they were told if they refused to answer the questions, they would be terminated from employment. The answers provided by the officers were then turned over to the prosecuting attorney to assist in criminally prosecuting the police officers. The United States Supreme Court held the officers statements (ordered under threat of termination) were compelled, and therefore violated their Constitutional rights.

Understanding Garrity is crucial to all public employers. While the case may be over 40 years old, it is good law today. Minnesota (pdf) has had several appellate court decisions (pdf) concerning Garrity issues.

On January 13, 2011, our firm is conducting comprehensive Garrity training, in conjunction with the White Bear Lake Police Department. (pdf) We have dissected almost a dozen local Garrity cases. We present the cases fact by fact, to help attendees not only understand, but also apply the Garrity case to real life situations. Our goal is to make sure the Garrity case is known and correctly applied by public employers, and help to avoid a potential disaster.

Creating Videos on Work Time Leads to Employee Discipline

The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.

Criminal Conduct Does Not Always Lead To Termination From Employment

It used to be that criminal charges and most certainly a criminal conviction, always led to termination from employment, especially in the public sector. This was at least in part due to a recognized sensitivity that taxpayers had a right to expect more from public employees. The trend is changing, evidenced by arbitration decisions awarding lesser discipline to employees charged, and even convicted of crimes.

Just last week a Minnesota corrections officer working at a state facility was reinstated by an arbitrator, after pleading guilty to felony terroristic threats. In a drunken off-duty incident, the corrections officer threatened to “blow off his girlfriend’s head along with her daughter.” He had 16 guns at his house, but did not make the threat with gun in hand. He was terminated for violating a Department of Corrections policy governing conduct of employees.

At the hearing, the employer argued the corrections officer was prohibited from carrying a weapon, which was sometimes required while he worked in Master Control. The employer also asserted it was untenable for an individual under criminal supervision himself, to have authority over inmates who also were under criminal supervision.

The arbitrator placed great weight on the fact the corrections officer had a spotless 20 year work record, and immediately after the incident, he checked into treatment for alcoholism, and followed all the recommendations included in his treatment plan. Even acknowledging the corrections officer was prohibited from carrying a firearm under the Supreme Court’s decision in U.S. v. Hayes, 129 S.Ct. 1079 (2009), the arbitrator reinstated the employee without backpay, to a job not requiring him to carry a firearm.

Acknowledging the case was a close call, the arbitrator found compelling the fact the employer had other employees working and supervising inmates who had DUI’s on their record. While the corrections officer pled guilty to a felony, he was sentenced as if he had committed a gross misdemeanor, the same level crime as other working employees. Coupled with the undiagnosed alcohol addiction, termination was deemed to have been too severe.

Off-duty conduct by an employee can result in discipline if there is a material, adverse nexus to the employer’s business. If the conduct is also criminal in nature, it is not guaranteed it will be found by an arbitrator to support termination of the employee. Careful review of all of the factors surrounding the employees work record, previous discipline practices in the workplace, and any mitigating facts should also be considered in deciding the appropriate level of discipline.

"1984" Big Brother in the Workplace?

George Orwell published his classic social science-fiction novel “1984” over sixty years ago. We all know the theme from high school English literature class. The world is embroiled in perpetual war, and government practices pervasive surveillance and mind-control to manage citizens. The main character, Winston Smith, is responsible for re-writing history to fit government’s ideology when he rebels against “Big Brother.”

I am not suggesting something as sinister as “Big Brother” is alive and well today. I am suggesting surveillance technology in the workplace is expanding and being used in new and different ways.

Bloomberg Businessweek reports an increase in the number of employers using the surveillance services of private detective agencies, to catch employees who abuse sick leave and play hooky from work. “Kronos, a workforce productivity firm in Chelmsford, Mass., recently found that 57 % of U.S. salaried employees take sick leave days when they are not really sick-a nearly 20 % increase from statistics gathered between 2006 and 2008.”

Detectives reportedly uncovered a teacher who fabricated an inoperable brain tumor to take an extended leave, firefighters caught attending a hockey game on-duty, and a health-care worker taking three days off for the flu, who was actually visiting Universal Studios theme park. Employees were found to use technology to cover their location, such as the employee who mailed his GPS tracker to the hotel where he was supposed to be attending a conference, while he had opted for an exotic vacation. It appears there is a thriving business for detectives, hired by employers to stop employee sick-leave abuse.

A different kind of surveillance is being used by the Burnsville, Minnesota, Police Department, which allows police officers to record citizen contacts with the help of body cameras. They are the first police agency in the state to purchase and equip its officers with this new technology, which includes a camera worn on their hat, and a portable computer where recordings are stored. The department reports, “The cameras will cut down on officers working overtime to testify in court because the video will speak for them in many cases. And there will be a lot fewer personnel hours spent investigating complaints against officers.”

As new technology is developed, employers will have to intentionally review their potential use and determine how it fits into their workplace philosophy. To the extent employers notify employees about core values and workplace expectations, and advise employees that misconduct will not be tolerated, then surveillance may not be viewed as “Big Brother” watching over their shoulders. Instead, it will be viewed as a means of holding employees accountable. 

Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment

When employees blur the line between their private life and professional life, it can be problematic for employers. In two recent Minnesota arbitration decisions, the issue of romantic relationships was central to employment consequences for two police officers. Both cases were heard by neutral arbitrators, and the actions taken by the employer were affirmed.

Fraternization: A romantic relationship which developed between a City of Champlin Police Sergeant and a patrol officer, eventually lead to the Sergeant’s demotion. The romantic relationship developed over a period of time, which led the City to give the Sergeant the option to resign his supervisory position or end the relationship. The Sergeant declined either option. The City subsequently adopted a formal Fraternization Policy. As a result of the new policy, the Sergeant was involuntarily demoted.

At arbitration, the Employer successfully argued the romantic relationship could lead to “…lawsuits, claims of preferential treatment, morale problems and safety problems in the department.” The Union claimed the Employer was prohibited from retroactively applying the Fraternization Policy. The arbitrator dismissed the Union’s argument stating, “All new policies have to have a starting point and the Fraternization Policy was enacted for safety, liability, and morale concerns, which are justifiable reasons for ‘retroactively’ applying the Policy to the Grievant’s romantic relationship, which caused the Policy to be promulgated in the first place.” As a result of the arbitrator’s decision, the Sergeant exchanged his supervisory stripes for romance.

Love Gone Bad: In another arbitration decision, a patrol officer for the City of Prior Lake was terminated from employment for his actions surrounding a failed romantic relationship. The officer had recently broken up with his fiancée, when he returned to her residence in uniform and on-duty. He used a key he still had to let himself in the house, and then broke down a bedroom door where his former fiancée was hiding with another man. The officer left the residence, and offered to pay for the broken door. He was convicted of two misdemeanors and terminated from employment. The arbitrator noted the conduct of the officer “…undercuts the mission and trust in a police department when an officer on duty violates the law and shows bad judgment resulting in abuse of authority and a failure to exercise discretion.”

Generally, when romance and work collide, the case concerns off-duty conduct. These two arbitration cases clearly indicate romance at work, or romance which leads to conduct during work, can have significant employment consequences. Employers clearly have a right and an obligation to consider the impact of romances on workplaces.

NLRB Charges Company With Illegally Firing An Employee Over Facebook Page

Many legal bloggers have wondered about the direction of the post-Bush National Labor Relations Board (NLRB). Speculation began about the time the Senate filibustered President Obama’s nominations, when the President slipped in under the radar with recess appointments of Craig Becker and Mark Pearce.

I think the time for speculation is over in light of the recent decision of the NLRB to file a complaint against American Medical Response of Connecticut, for firing an employee who used Facebook to lambast her supervisor. The case stemmed from an employee who was asked to prepare a response to a customer complaint. The employee, a member of Teamsters, asked for assistance from her union representative. When her supervisor denied her request, she lambasted him on Facebook using vulgarities and referring to her supervisor as a “17,” the company’s abbreviation for a psychiatric patient.

The NLRB has claimed the company’s Facebook policy was “overly broad,” and infringed on the employees right to discuss working conditions with fellow employees. The policy had prohibited employees from making comments about the company on Facebook or other social media sites.

The New York Times reported, “…, the Board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.” The charges will be heard by the NLRB at the end of January, 2011.

Common sense and civility appear lost in all of this. Yes, the National Labor Relations Act creates protected speech insuring an employee’s right to discuss wages, working conditions, and unionization. It is not however a bullet-proof blanket protecting anything an employee wants to throw out on social media. The case sounds very fact specific, and may very well result in a mixed decision by the Board finding both protected activity and non-protected misconduct by an employee.  MPR Marketplace reporter Janet Babin reported on the case this week, summarizing a variety of viewpoints including my own.

Speaking vulgarities about your supervisor or questioning his mental capacity through social media is not the same as a private conversation with other employees, and besides the rest of the world doesn’t want to hear it. I have previously blogged about the need for workplace social media policies, and the threat to businesses posed by employee use of social media.

This is definitely a case to watch to see how far the NLRB will try to stretch into micromanaging workplaces. In the mean time, it would be wise to revisit your social media policies to see if the NLRB may come knocking on your door. 

If Your Employee Handbook References Progressive Discipline, You Better Use Progressive Discipline.

Mr. Stagg worked for Vintage Place Inc. for approximately 14 months, during which time he struggled with tardiness and absenteeism. Vintage Place Inc. employee handbook contained a progressive-discipline policy, which provided that Vintage's employee[s] may be disciplined according to a five-step schedule. The schedule permitted an oral warning for the first unexcused absence, a written warning for the second, a three-day suspension for the third, a ten-day suspension for the fourth, and termination for the fifth. As a result of his attendance problems, Mr. Stagg had received both an oral and written warnings, and a three-day suspension, but was fired before receiving a ten-day suspension.

This summer, the Minnesota Court of Appeals reversed an unemployment law judge’s determination an employee was precluded from receiving unemployment benefits because he was terminated for misconduct. In Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010) (pdf) the Court of Appeals ruled the employee, “could have reasonably expected Vintage to follow the disciplinary steps, and because Vintage skipped the fourth step of a ten-day suspension, relator's absenteeism does not amount to employment misconduct precluding eligibility for unemployment benefits.”

I have blogged about this in the past, you don’t want to include specific discipline procedures in an employee handbook, because, “Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.”

What should you do?
1) If you have a specific discipline procedure in your employee handbook and you are currently dealing with a problem employee, then you better follow your procedure.
2) If you have a specific discipline procedure in your employee handbook and you do not have a current problem with an employee, then this would be a good time to update and revise your employee handbook.

Seventeen St. Paul Pothole Patchers Punished

Native Minnesotans are all too familiar with the ravages that temperature and moisture can play on asphalt roads. We even grade our potholes from mere fissures all the way up to an abyss which is capable of devouring a small vehicle and its driver. As the driver of a small car, I am constantly alert for these roadway gouges, in hopes of averting a flat tire or the need for yet another wheel alignment.

Much to my dismay in March, local Channel 5 KSTP investigative reporters caught a number of St. Paul public workers on tape, spending more time in convenience stores, and restaurants on breaks, than actually fixing potholes. The story culminated this week with 17 public works employees being disciplined for their extremely poor pothole performance. The discipline included eight letters of reprimand, two demotions, and a total of 59 days of suspensions without pay.

Local newspaper columnist Joe Soucheray described the public works crews, “…are more lawyered up than British Petroleum.” Grievances have been filed on all of the disciplinary actions by five different unions, and a federal U.S. Department of Labor complaint has been filed by the employees alleging a new bathroom break policy violates their rights. It begs the question, How many unions does it take to fill a Minnesota pothole? Answer: Five. One union official was quoted as stating, “I don’t think my workers did nothing wrong” instead blaming the problem on supervisors and inefficiencies in the workplace.

Obviously something went very wrong, and it took an investigative reporter to bring the problem to light. Workplace accountability, active supervision of employees, and better work site controls need to be implemented immediately. To the unions, I say: Use some common sense before you take these cases forward to expensive arbitrations. No one has much sympathy for lazy public workers in today’s challenging economy.