Last month, Arbitrator Stephen Befort denied the grievance of a Faribault County deputy who claimed the County did not have just cause to terminate his employment.  Deputy Dulac was terminated by the Faribault County Sheriff’s office for misconduct surrounding two different issues.  The first issue involved his off-duty conduct at a bar where he failed to secure evidence of criminal behavior.  The second issue involved him repeatedly pointing his loaded service weapon at other deputies as gunplay.

Arbitrator Befort found the incident at the bar where Deputy Dulac failed to secure custody of some Vicodin pills as evidence of possible criminal behavior warranted discipline but was not substantial enough to warrant discharge.  Arbitrator Befort, then turned his analysis to the second issue involving the pointing of his loaded service weapon at fellow employees.

This is not the first time, Arbitrator Befort has heard a case about gunplay in the workplace.  In 2005, Arbitrator Befort reduced a termination to a 30-day suspension for a deputy in Washington County who was accused of inappropriately pointing his gun at coworkers.  Arbitrator Befort stated in his award, the difference between the Washington County case and the current case was in Washington County there was evidence the supervisors were aware of the conduct, and never told the deputy to stop the behavior.  Additionally, in Washington County there was evidence of a culture of gunplay in the department.  Neither of these factors were present in the Faribault County case.

Arbitrator Befort agreed that Deputy Dulac’s actions of pointing a loaded gun at fellow employees was serious misconduct.  Deputy Dulac admitted he had done this on multiple occasions over the years.  The evidence showed none of the supervisors at the Faribault County Sheriff’s Office were aware of his actions.  During the course of the arbitration hearing, Deputy Dulac testified that two other deputies had pointed their weapons at Deputy Dulac many years before.  The County immediately began an investigation into Deputy Dulac’s claims, and the arbitration hearing was put on hold.  The subsequent investigation concluded that Deputy Dulac’s claims were unfounded.  All eight deputies who were interviewed during the investigation indicated they never observed another deputy, except Deputy Dulac, point a weapon at a colleague.

While most workplaces may not have guns, there may be other dangerous horseplay happening at work.  Arbitrators are not inclined to overlook dangerous working conditions.

Line of people taking notesEarlier this year the Court of Appeals overturned the district court’s dismissal of a case regarding the negligent retention of an employee.  In Hartfiel v. Allison, unpublished Court File # A15-1149 (Minn. Ct. App. 2016) Mr. Hartfiel, the plaintiff, drove truck for T.J. Potter Trucking Inc. as an independent owner-operator.  Mr. Allison drove truck for Potter Trucking as an employee.  In June 2010, Mr. Allison attacked Mr. Hartfiel at the workplace.  Mr. Hartfiel sued Potter Trucking for negligent hiring, negligent retention and negligent supervision of Mr. Allison.  The district court dismissed all of Mr. Hartfiel’s claims, and Mr. Hartfiel appealed.

The Court of Appeals reviewed the negligent hiring and negligent retention claims stating, “Negligent hiring is the failure of an employer to use reasonable care in hiring individuals who, through the employment, may pose a threat of injury to members of the public…. An employer will not be held liable for failure to discover information about the employee’s incompetence that could not have been discovered by reasonable investigation…”

Plaintiff Hartfiel claimed because Potter Trucking did not do a background check on Allison when it hired him, it did not conduct a reasonable investigation.  Mr. Allison had previously been arrested for assault on two occasions.  Generally, there is no legal duty that employers investigate an applicant’s criminal record.  Potter Trucking does check applicants’ driving records but does not conduct criminal background checks.  The Court of Appeals stated, “In determining whether an employer conducted a reasonable investigation, …is directly related to the severity of risk third parties are subjected to by an incompetent employee.”  The Court of Appeals found there was no evidence to suggest that Potter Trucking knew or should have known of Allison’s violent propensities when it hired him as a truck driver.  Therefore, the district court did not err when it granted summary judgment to Potter Trucking on the negligent hiring claim.

The argument of negligent retention has very different considerations.  The Court indicated, “The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to insure the safety of third parties.”

Plaintiff Hartfiel testified he had heard about Mr. Allison “working over” a subcontractor while off-duty out at a bar.  Mr. Allison admitted to smacking the subcontractor because he thought the subcontractor was going to hit him.  The incident was not reported to Potter Trucking because it was off-duty and off-site, but the owner of Potter Trucking acknowledged the altercation had been brought to his attention via the gossip mill.  He did not address the issue because it was not work related and he stated, “boys are boys”. The Court of Appeals held there were genuine issues of material fact regarding Mr. Hartfiel’s negligent retention claim, and overturned the district court’s granting of summary judgment.

My law partner has previously blogged about the importance of the hiring process.  Many employers many not realize that they can be sued for negligent hiring and/or negligent retention.  Take an opportunity to make sure you have a good hiring process in place.  Also, don’t ignore issues between employees just because they don’t occur at work.

I had a call from a client last week asking about whether there was a good format to use for drafting a disciplinary letter to give to an employee.  I advised her there was and suggested the following format:

  • Start with an accurate statement of the facts including: what happened, when it happened, etc… Make sure it is factually based and does not include opinion or judgment.  If a workplace policy or safety violation occurred, it should be referenced.
  • Describe any previous problems or issues, and what happened as a result (if anything). Be specific about dates and consequences such as you were counseled about …, or you were reprimanded, or you were retrained on this same problem etc…
  • Describe the impact the misconduct or performance problems have on the workplace.  The impact could be financial, related to staffing, safety, disruption of work production etc…  An example would be; “As a result of you being late to work, other employees needed to fill in for you until you arrived.  This meant they were not able to complete their own work.”
  • Clearly explain the expected behavior or performance that must be achieved to be successful.
  • Finally, the conclusion should state what will happen if the employee does not improve or change their conduct.  For example: “Future misconduct may result in further discipline, including termination from employment.”

A clearly drafted disciplinary letter helps to document an employee’s misconduct or performance deficiency and can help avoid future litigation claims.  It also gives clear direction to the employee about what is expected in the future and the potential consequences for failing to make the identified changes. 

Photo by: MCruz

NBC_News_Rockefeller_CenterThe recent Brian Williams debacle is the third major employee melt-down for NBC in the last 18 months.  NBC’s talent trouble started with the 2013 Today Show debacle and the bullying of Ann Curry by her fellow Today Show producers and hosts.  Curry left the show in tears amidst allegations of taunting and what she termed “professional torture.”

In 2014, NBC medical correspondent Dr. Nancy Snyderman’s ignored an ebola quarantine to go get take-out food, which brings us to Brian Williams recent 6 month suspension over his exaggerating news stories.  It was uncovered that news anchor Brian Williams embellished his involvement in a news report from twelve years ago, where he claimed his helicopter took on gun and missile fire while he was reporting from Iraq.  The media frenzy surrounding this revelation was a lot like piranhas feeding on fresh meat, no doubt influencing NBC’s decision to suspend Williams from the anchor desk.

It goes to show employee misconduct is not restricted by employee education, income, or job visibility.  I was glad to hear NBC conducted an investigation into the Williams matter, before deciding to suspend him for six months.

My question for NBC is why did it take twelve years for the Williams story to surface, and then only because an issue was raised by military personnel who were present?  What about the NBC camera crew and support personnel who were with Williams during the embellished helicopter ride twelve years ago?  Is there a corporate culture at NBC that protects badly behaving talent that should be addressed here as well?

Spin doctors are trying to shift the focus off of troubled NBC, and onto Fox news journalist Bill O’Reilly, alleging he embellished news coverage over the Falkland war.  Unlike Williams however, O’Reilly is holding fast to his journalistic integrity.

The take-aways:  NBC, like any employer dealing with employee misconduct, needs to review its’ corporate culture to get at the heart of why well-educated, highly-paid talent are behaving badly.  That is the only way NBC can truly retool their image and regain market share. I know I am going to be checking out David Muir over on ABC for my evening news, while NBC figures this all out.  I might even tune in to Bill O’Reilly to see why he is viewed as such a threat.

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.   


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.

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.

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.