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

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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I have blogged numerous times over the past year about the importance of training employees and it bears repeating. Businesses who don’t train their employees can suffer from all kinds of potential problems, from fines for OSHA violations, fines for FLSA violations, or civil liability because of discrimination or negligence claims, just to name a few.

Earlier this week the Occupational Safety and Health Administration cited the City Brewing Company in La Crosse, Wisconsin for 16 serious safety violations. Over $100,000 in fines has been issued and the company has only 15 days to pay the fines or appeal OSHA’s decision. Another violation involved not training employees in an emergency-response plan.

With training, it is possible for employers to avoid or defend against many workplace issues.
Training:

• Puts employees on notice as to what is or is not appropriate in the workplace.
• Informs employees what laws are applicable to the workplace.
• Informs employees what penalties will occur if policies/procedures are violated.
• Should be on-going in nature. Refresher courses are important and helpful.

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Taking a statement from an employee in a workplace investigation is an acquired skill, most investigators don’t have sufficient opportunity to practice or perfect. At this point in my career, I have represented clients in over 1,500 workplace investigations, from both sides of the table. I previously represented employees and now exclusively represent employers. I have come to the conclusion there are three words which can cause employees to drip sweat, and can strike fear in most union representatives. Those three words are; “Tell me about…” as in “Tell me about the pornographic sites found in your computer history;” “Tell me about why you were late for work;” “Tell me about the car accident with the company truck;” or “Tell me about the conversation you had with ...”

Asking an open-ended question invites the employee to provide a narrative response, likely to be broad in scope, and extremely helpful to the investigator. If asked as the very first question in the statement, it can provide an opportunity for the investigator to observe the demeanor of the employee, assess the employee’s comfort level with the process, and perhaps help in developing opinions about truth and veracity. Those three powerful words are extremely difficult for a union representative, because they make it difficult to predict what the employee will say in response, and they make it harder for the union to interfere with the statement. 

Several weeks ago I presented a three hour course on investigations called, “How to Take the Best Internal Affairs Statement of Your Career,” and shared these three most powerful words.   I advised all those attending the class, that if they remembered one thing from the class, they should remember the three powerful words, “Tell me about…” The quality of responses and the volume of information obtained from the employee being questioned will be greatly enhanced, resulting in a more complete investigative statement.  

For those wondering, the next question to ask after, “Tell me about,” is either, “Anything else?” or “What happened next?” Short prompting questions at this point will keep the employee talking, and provide even more valuable information to the investigator. 

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Last year, I blogged about a tragic accident at a Wisconsin amusement park where a 12 year old girl fell more than 100 feet from the Terminal Velocity ride due to operator error. I stressed in that blog the importance of training employees and conducting refresher training, especially when safety issues are involved.

Last week, a double-amputee Iraq War veteran fell to his death at a New York state amusement park after being thrown from the Ride of Steel roller coaster. Signs at the roller coaster clearly stated, “[f]or the restraint devices on this ride to fully and safely engage, guests must have two legs and be within certain range of size and physical dimension. . . In addition, guests must have sufficient body strength and the complete use of at least one arm and hand to hold on to the grab bar.” The media has reported the ride operators were clearly aware Mr. Hackemer did not have legs and offered no explanation for why they let him ride it. It is uncertain if Mr. Hackemer was wearing his prosthetic legs at the time of the accident. A criminal investigation found no recklessness, intent or criminal wrongdoing, but that doesn’t mean the Darien Lake Theme Park & Resort is off the hook yet.

Just the fact that they had a policy in place, which had it been followed would have prevented this tragic accident, causes some concern when it comes to potential civil liability. This was a 29 year old young man with two young daughters to support and raise.

I can’t stress enough:

(1) The importance of having policies in your workplace, especially covering safety issues;
(2) Training employees on the policies, and providing refresher training; and
(3) Ensuring employees understand and follow the policies in all circumstances.

Employers can’t just train the employees and assume they understand. Employers must go further and insure employees can apply what they have learned and know not to deviate from safety policies. Safety policies serve two purposes: to protect citizens and the business. Unfortunately, they failed to protect both in this case.

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Many work accidents are preventable through training and actively managing employees. Accidents at work can be devastating to the public, employees, and the employer, not to mention the liability exposure and resulting loss of employee work time and productivity. The federal government maintains statistics on fatal accidents, as do most states. Most recently, the Monthly Labor Review reported on a “Survey of Occupational Injuries and Illnesses,” based on national data from state and local governments. The survey noted a higher rate of injuries and illnesses in the public sector as compared to the private sector, and a higher rate of injuries and illnesses in local government workplaces, in comparison to state government. It is estimated there are approximately 1.6 million workplace injuries each year. The data is daunting.

Workplace safety numbers are impressive, but they only tell part of the story. Behind each workplace accident or injury, is the potential for employee discipline. Employees can and should be held accountable for safety violations. This month in Minnesota, two different arbitrators ruled in favor of the Employer, in two separate cases dealing with safety violations at work.

Arbitrator Martin upheld the termination of a public works employee who failed to stop for a school bus that had its flashing lights on and stop arm out. The Anoka City employee was driving a street sweeper at the time. No accident occurred and no small children were injured, but the arbitrator still upheld the employer’s decision to terminate the public works employee. He based his decision on the careful attention the City had paid to safety matters, and the safety training and policies they had adopted. The employee had a lengthy work record which included a laundry list of at least fifteen (15) past careless acts, including some intentional acts of disregarding safety rules. The Arbitrator noted there was no formula to determine discipline in safety cases “…how many events, over how much time, with what lulls require what discipline…” He did indicate the City did not have to wait for a serious accident before terminating the public works employee.

In another safety related case, Arbitrator Beens upheld the termination of a Metro Transit bus driver who had four chargeable accidents in a three year period. Almost four pages of the arbitrator’s award discuss the safety training, policies, and rules adopted by Metro Transit. A policy was in place indicating four “responsible accidents” within a three year period would result in termination. The driver had adequate notice her three previous accidents were going into her permanent file, and she elected not to grieve any of the prior determinations by the Employer.
The union and management disagreed on the definition of a “responsible accident,” and the arbitrator ruled in favor of the Employer, agreeing that a responsible accident means a preventable accident. Despite the union arguing the driver was well-liked by bus-riders, and enjoyed her job; safety won out in the end.

Employers prevailed in both arbitration cases because they had focused a lot of time, attention, and money relaying the importance of safety to employees through training, policies, and consistent application of discipline. Accidents will happen; Employers need to make safety a priority, and hold employees accountable for safety violations.

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My law partner, Tiffany Schmidt and I have been asked to present, “What to do about Employee Misconduct?” as part of St. Paul College’s Smart Start Breakfast Series. As usual, we will skip the legalese and instead offer practical tips and suggestions gained through years of experience in labor relations. Join us for an informative and fun early start to your work day.

St. Paul College designed the Smart Start Series as part of their quality training programs designed to deliver information to help businesses and organizations throughout the Twin Cities metro area stay informed and educated about best practices pertinent to workplace skills, leadership, organizational sustainability, and business solutions.

The spring Smart Start Series includes other presentations on:

• “Best Business Practices: Keeping Your Business Out of Legal Trouble” by attorneys Susan Minsberg and Mary Budge;
• “Getting What You Want” by attorneys Gayle C. Hendley and Karen E. Marty, and
• “From Divorce to Death” by attorneys Susan Minsberg and Catherine R. Thatcher.

We hope to see you there.

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Every Sunday, I receive the Parade magazine in my newspaper. It typically has some interesting articles or interviews with celebrities. This summer, it had an interesting article on workplace bullying. Parade magazine did an informal poll on their website asking, “should workplace bullying be illegal?” The results:

Should workplace bullying be illegal?   Yes = 93% and No = 7%

Bullying is not uncommon, whether it is on the playground, in high school or in the workplace. Workplace bullying can cause low morale, increased employee turnover, and decreased productivity, none of which is a positive contribution to the workplace. There is even an employee-advocate group called Workplace Bullying Institute (WBI). WBI defines workplace bullying as “repeated malicious mistreatment, verbal abuse, or conduct that is threatening, humiliating, or intimidating, or that interferes with work.” Workplace bullying is different from harassment and discrimination which is unlawful under state and federal laws, though there can be overlap. General workplace bullying is not covered by harassment or discrimination laws and instead targets someone without regard to their sex, race, national origin, color, religion, etc. Presently, seventeen states have introduced bills which would allow victims to sue for damages resulting from workplace bullying.

In Minnesota, it is possible for employees to seek recovery for workplace bullying under the common law claim of “intentional infliction of emotional distress.”

So, what should an employer do to prevent or address workplace bullying?

1) Implement a general code of conduct policy.
2) Train employees on what is acceptable workplace behavior.
3) Train supervisors to recognize and address bullying when it occurs.

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I’ve blogged before about the importance of making sure your employees are being paid properly under the Fair Labor Standards Act (FLSA).

Last week, the U.S. Department of Labor issued two new press releases announcing investigations resulting in more than $500,000 in back wages being paid to employees. The first, involved the Walt Disney Parks and Resorts in Orlando, Florida where 69 employees will receive $433,819 in back wages due to violations of the FLSA. During its investigation the Wage & Hour Division found employees were not being paid correctly for work activities occurring before and after their normal shifts, when they worked through their meal breaks or when they worked from home. The investigation revealed, “while Walt Disney has specific rules regarding off-clock work, . . .managers within the company were not adhering to those important policies.”

The second press release, involved a Minnesota home health care company, Prairie River Home Care Inc. which was found to have violated the FLSA by failing to pay 144 current and former employees time and one-half their regular rates of pay, for all hours worked in excess of a 40 hour week. Under the Minnesota Fair Labor Standards Act (Minn. Stat. 177.25), employers are required to pay overtime for all hours worked over 48 hours in a week. Prairie River Home Care Inc. was following Minnesota law for overtime compensation. The problem arose because wages and hours of work are covered by both state and federal law. When that is the case, the law with the higher standards must be observed. So, although Prairie River Home Care Inc. was not running afoul of state law, it did run afoul of federal law, resulting in the investigation and penalties.

I’ve said it before and it is worth repeating; it isn’t just important to have a policy addressing overtime issues, it is also important to train employees on the policy, and make sure supervisors are following it. It cost Walt Disney a lot of money, just because supervisors were not following the policies which were in place. Lastly, when both state and federal law are applicable to your business, make sure you are following whichever law, has the standard which is more advantageous to the employee, so you don’t get penalized like Prairie River Home Care.

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Let’s face it, accidents happen. They happen at home and they happen at work. People make mistakes, get distracted or just don’t pay attention and accidents happen, it is human nature. Sometimes the accidents are small and harmless and other times they are serious and costly.

Last month, a twelve year old Florida girl was seriously injured after falling 100 feet from the amusement park ride Terminal Velocity at Extreme World in Lake Denton, Wisconsin. Recently, the employee, who was working the ride when the accident happened, was charged by local prosecutors with one count of first degree reckless injury, because he claimed he “blanked out.” He said he never got the all clear signal from the employees on the ground before letting the girl drop.

This accident is costly in many ways. The employee is charged with a felony punishable by up to 25 years in prison and a $100,000 in fines. The employer is dealing with negative publicity, lost revenues due to the ride's closure, and most likely looking at some type of lawsuit, although liability maybe limited due to various disclaimers which appear on the ticket stubs. And of course, the family is dealing with the injuries received by their young daughter, who may or may not be left paralyzed from the fall.

Can all accidents be avoided? No. But, you can do your best to prevent them and limit the affect on your business.

I’m sure I sound like a broken record, but I can’t stress the importance enough - train your employees. Conduct refresher training periodically, especially when it involves safety issues, because you can never be too careful. Make sure employees know their job duties, especially when specific steps have to be done in a particular order. Talk to your employees, get their input on the kinds of training they would like or would find helpful. Ask the employees if they understand their job duties. The goal is to prevent an accident from harming your business.
 

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My firm provides training to employers on various topics concerning labor and employment law. For example, we do training (pdf) on the United States Supreme Court case, Garrity v. New Jersey, (pdf) as well as, how to address and prevent employee fraud and theft in a workplace. We think training is very important. It provides instruction on best business practices and it can also reduce liability for an employer.

Training has even been raised in the press lately. The Federal Aviation Administration recently distributed an “Information for Operators” guide, urging airlines to train their crews about in-flight distractions. This stemmed from the October 2009 incident, where a Northwest Airlines plane over-shot the Minneapolis-St. Paul International airport by more than 100 miles, before circling back and landing an hour late. During an investigation into the incident it was determined the pilots were immersed in working on their laptops during the flight.

Also, as part of a settlement in a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), Alliance Rental Center, L.P. is being required to provide training to its managers on the laws enforced by the EEOC.

When problems occur in your workplace, one of the first questions that will be asked is, “Was training provided?” Questions to ponder: What training do you do in your workplace, and do your employees need training or a refresher? 
 

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April 28, 2010 was Workers Memorial Day. U.S. Secretary of Labor Hilda L. Solis issued a nice statement in honor of the memory of workers killed on the job. Employees are the life blood of most businesses. They are who get the work done and keep a business going.

Employees are injured on a daily basis in workplace accidents. When this happens it affects a business operations and finances. It causes employees to lose time from work to recover, it diverts the attention of other employees to cover the work of the injured employee, and it will affect an employer’s worker’s compensation rating.

What can you do to prevent workplace injuries?

• Make sure your employees have the proper safety equipment.
• Make sure employees have the proper training.
• Make sure employees keep their work areas clean.

If you provide a safe work environment, and train your employees, you won’t have workplace injuries affecting your company’s bottom line.

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