Fisher & Phillips LLP Labor Letter March 2014


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"Termination May Not End It"

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Fisher & Phillips LLP Labor Letter March 2014

  1. 1. Labor Letter March 2014 Distracted Driving: What’s In Your Policy? By Jennifer Sandberg (Atlanta) Long before cell phones, drivers faced various distractions: eating, grooming, attending to children, changing the radio station, rubbernecking someone else’s accident, becoming absorbed in a conversation, or arguing. These distractions created safety hazards and, of course, still do. So just what is “distracted driving”? Anything that takes a driver’s attention off the task at hand – driving safely. Distracted driving clearly includes dialing or talking on a cell phone (even hands-free) and texting, emailing or accessing other smartphone or internet-based features. Yet most employers do not have a longstanding “distracted driving” policy but rather have just a hands-free-mobiledevice-use policy. If they have a policy at all. A Look In The Rearview Mirror The laws related to the use of mobile devices while driving provide an interesting example of how law – and employer policy – often lag behind developments in employee behavior in the workplace. Mobile phones have been available since the early 1970s and readily available to the masses since the early 1990s. By 2002, almost half of the U.S. population owned a cell phone. As of May 2013, 91% of American adults had a cell phone and over half were smart phones. Clearly, for many years, employees have been using cell phones for work or personal business while driving. Yet, until 2001, no state had a law regulating the use of cell phones while driving. New York began the tidal wave of legislation related to the use of cell phones while driving and now all but a few states have at least some limits on cell phone use or texting by at least some drivers (such as young drivers or bus drivers). Yet only about half of all employers have a policy directing employees to use hands-free devices and not to text while driving. What Makes The New Distractions Different Cell phone usage and texting are verifiable. When an accident occurs, records exist that verify whether a driver was using a cell phone. Multiple studies have validated that cell phone usage while driving (even hands-free) drastically increases the chance of an accident. In our legal system, such “proof” means trouble for the user of the cell phone and the user’s employer if the user was either conducting work on the cell phone or driving for work – regardless of who owns the vehicle or the phone. Of course in accident lawsuits, the use of a cell phone can cut both ways. Traditionally, we think of a driver being liable for an accident while using a cell phone but there are plenty of cases where injured pedestrians or persons not directly involved in the accident still share in the liability because they were using a cell phone and were not fully aware of the environment. Our Advice Most employers likely have “made do” with a common sense, unwritten policy of “drive safely” for many years. Now, most recognize that they should have had a distracted driving policy or at least a hands-free © 2014 Fisher & Phillips LLP policy. For an employer just now developing a new policy, the policy should be broad enough to cover all forms of distracted driving and not just limited to hands-free requirements. Most importantly, the policy should be practical and enforceable. While what is “practical and enforceable” may vary by industry and the types of workplace driving that occur, you should require your employees to comply with any applicable state law. In addition, the policy should encourage employees not to engage in any form of distracted driving and offer basic alternatives like “pull over” or “wait until you get back to the office.” The policy should clearly tell employees that you do not expect the employee to engage in work – other than safe driving – while driving. Next, decide what level of compliance you are ready to enforce at all employee levels at all times. The worst policy an employer can develop is one that says “never ever engage in any form of distracted driving or you will be terminated immediately.” While such a policy might be theoretically perfect, it is practically imperfect. Some form of distracted driving is inevitable and immediate termination may not be the answer. The worst possible scenario is an employer who sets a very high bar but fails to enforce the high bar and then has an employee who injures someone. In that case, the employer’s policy will hurt more than it helps. But the solution is not to avoid developing a policy. The solution is to develop a policy that works for your industry and your drivers and is a policy that you can enforce. If you’d like our help in developing such a policy, just let us know. For more information contact or 404.231.1400. the author at
  2. 2. Termination May Not End It By Tillman Coffey (Atlanta) Webster’s Dictionary defines “termination” as “the act of ending” or “the end.” In the employment context, “termination” often is intended to be the end of the employment relationship. Perhaps the employee caused problems with coworkers, was an underperformer, violated company policies, or all of the above. Although terminations generally are stressful and unpleasant experiences for all, employers hope that this change will eliminate problems. Unfortunately, an employee termination can be the source of a new problem for the employer and the beginning of another relationship between the employer and the now former employee. The former employee may file a wrongful termination claim alleging that his former boss and employer did something wrong. The employer’s “wrongdoing” may be as simple as failure to take consistent disciplinary action or the timing of the termination itself. While it’s often true that the employee “should have been terminated a long time ago” (or should have never been hired, as is often lamented), bad timing and inconsistency often overshadow bad performance and conduct and increase the chances that termination will not be the end. Take A Second Look Many terminations result from a manager’s emotional response to a situation or series of situations. When emotions or the exhaustion of patience take over, risks associated with terminations increase. Some decisionmakers do not recognize these risks while others downplay them based on an over-reliance and likely misunderstanding of the employment-at-will doctrine. Under that doctrine, employees not employed for a definite time pursuant to an agreement can be terminated without cause or notice. On its face, this doctrine seems to make employers practically bulletproof because the vast majority of employees are employed at-will. But the at-will armor is far from impenetrable, as almost all wrongful-termination charges and lawsuits are filed by employees who were employed at-will. Raising the at-will doctrine as a defense to these claims generally goes nowhere fast. Most wrongful discharge claims are brought in the form of a discrimination or retaliation claim or both. In a typical discrimination claim, the allegations are that the employer treated the fired employee differently than another employee who engaged in the same or similar misconduct or had the same or similar level of performance. The dispute in the lawsuit generally is not whether the fired employee engaged in misconduct or underperformed. Often those facts are conceded. Instead, the dispute centers on the reason the employer did not terminate others who engaged in the same conduct. The former employee will allege that the reason for the different treatment was race, sex, religion, age, etc. By way of example, an employer fired an African-American employee after the employee wrecked a company vehicle. On the surface, this termination decision seems like a no-brainer, especially since the employee was “at-will.” The employee never denied wrecking the vehicle, even when he filed his lawsuit alleging race discrimination. His theory was that the employer had not terminated non-African American employees who also had damaged company property. In other words, his allegations were that the employer treated him differently because of his race. Whether or not race was a reason for the alleged difference in treatment will now be decided by a jury. 2 © 2014 Fisher & Phillips LLP Retaliation Retaliation claims take a similar route to the courthouse. Many employment laws include anti-retaliation provisions. For example, FMLA, OSHA, the FLSA, workers’ compensation laws, and the anti-discrimination laws, among others, all prohibit employers from retaliating against employees who exercise their rights under these laws. The exercise of these rights is called engaging in “protected activity.” An employer that terminates an employee for engaging in protected activity risks having to defend a difficult lawsuit. In the last few years, there have been more EEOC charges alleging retaliation than any other category of discrimination. To illustrate how retaliation claims come to life, suppose you want to terminate an at-will employee for excessive absenteeism. With accurate Continued on page 4 One Day, Many SolutionsSM Employment Law Coast-to-Coast March - May 2014 The labor and employment attorneys from Fisher & Phillips LLP are going coast-to-coast in 2014 with practical solutions for workplace problems. Our seminar is designed for anyone who manages employees and makes decisions impacting the workforce. Scheduled Topics Included: 9:00 a.m. - 9:30 a.m.: She Said What?!? Conducting Better Workplace Investigations 9:30 a.m. - 10:00 a.m.: Taking the Bully by the Horns: Stop Harassment Before It Becomes Illegal 10:00 a.m. - 11:00 a.m.: Breaking Bad Behavior: Medical Marijuana, Alcohol, Cigarettes, Cursing, Social Media, Tattoos, Piercings, Missing Underwear, Body Odor, etc. 11:15 a.m. - 11:45 a.m.: Which Is Riskier: Hiring Criminals or Conducting Background Checks? 11:45 a.m. - 12:15 p.m.: Everybody Gets A Trophy: Avoiding Performance Management Mistakes 1:15 p.m. - 2:15 p.m.: Think Twice Before You Delete That Email: Computers and Employment Law Nightmares 2:15 p.m. - 2:45 p.m.: If A Stripper Is Not An Independent Contractor, Who Is? 2:45 p.m. - 3:30 p.m.: Healthcare Reform Check-Up: Key Concerns for Employers 3:45 p.m. - 4:45 p.m.: Only in This Town . . . State and Local Employment Law Developments and Trends $165 per person / $125 per person for two or more attendees from the same organization. Visit for seminar locations and to register. If you have any questions please contact Charles Varon at (404) 760-7987 or
  3. 3. Tenth Circuit Rules On “Termination By Committee” By Greg Ballew (Kansas City) On January 21, a federal appeals court addressed whether an employee terminated by group decision (six managers) can be considered “similarly situated” to employees who were disciplined less severely by a different decisional group, consisting of some but not all of the same managers. Reversing the summary judgment decision of a Wyoming trial court, the U.S. Court of Appeals for the 10th Circuit stated: Although there is no clear legal rule as to how much overlap is needed among decision maker groups for employees to be similarly situated, requiring absolute congruence would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously… insist[ed] that the composition of the decisionmaker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to [employee]. The 10th Circuit cited the fact that five of the six decision makers who terminated the employee also participated in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules. The 10th Circuit covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Smothers v. Solvay Chemicals, Inc. Facts Steven Smothers, a maintenance mechanic for a chemical producer at a Wyoming facility, suffered a neck injury in 1994, which led to degenerative disc disease and a number of surgeries and medical procedures. The employer, Solvay Chemicals, granted Smothers’ request for intermittent leave under the Family and Medical Leave Act (FMLA) because of the related conditions. According to the district court’s opinion, “Some of Smothers’ work partners and supervisors complained about the hardship created by Smothers’ work absences,” and the superintendent asked Smothers if he would work days when more employees were available to cover his work if he were absent. Smothers declined. In 2008, Smothers proceeded to remove a part connected to a hydrochloric acid pump without following the employer’s “lockout” safety procedure. A coworker offered to assist Smothers with the repair, but Smothers declined the assistance and engaged in an argument with the coworker. The coworker complained to a manager about Smothers and Smothers subsequently admitted to removing the pump piece without following the appropriate safety procedure. Smothers, who had been employed for eighteen years, was terminated for the safety violation and the dispute with the coworker related to the safety violation. The decision to terminate was the result of a decision by a group of six managers. The employee filed suit against the employer claiming that the termination violated the Americans With Disabilities Act (ADA), was retaliation in violation of the FMLA and also violated state law (breach of implied employment contract). The employee claimed the real reason for the termination was unlawful retaliation and discrimination; i.e., that the employer had grown frustrated with his use of intermittent FMLA leave for a condition which also qualified as a disability under the ADA. In support of his claims, Smothers argued that other workers had engaged in safety violations of comparable seriousness (failure to follow the lockout procedure) but had not been terminated. The employer countered that those employees were not similarly situated to Smothers because the decisions as to discipline involved different decision makers. The employer moved for summary judgment The federal district court for the District of Wyoming granted the employer summary judgment on all three of Smothers’ claims. As to the ADA claim, the district court found Smothers was not disabled, but also concluded that, as to the ADA and FMLA claims, there was insufficient evidence of pretext, rejecting Smother’s similarly situated argument and stating, Pretext cannot be inferred where one supervisor treats an employee one way and a different supervisor (or group of supervisors) treats another employee a different way given that a supervisor or a group of supervisors may see safety infractions differently. The district court also found that the violations committed were not comparable. Smothers appealed. The 10th Circuit’s Decision The court of appeals reversed the district court’s grant of summary judgment, noting that there was evidence that other employees were treated more favorably after committing serious safety violations. The employer argued that the comparators cited by the employee as having been treated more favorably were not similarly situated because different decisionmakers were involved in determining the appropriate discipline. The employer, who uses group decision making to determine discipline for safety violations, argued that the composition of the group that terminated Smothers was different from the composition of the group that disciplined other employees Smothers identified as treated more favorably. The 10th Circuit rejected this argument, pointing out that five of the six decisionmakers who terminated the employee also participated in at least one decision in which an employee was treated more favorably after violating the same or a comparable safety rule. In a footnote, the 10th Circuit also stated it was undisputed that the site manager was the ultimate decision maker in all discipline cases, but that its conclusion “did not rest solely on [the site manager’s] role because he was many levels removed from Mr. Smothers’ direct supervisor.” The 10th Circuit concluded that the district court erred by “insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary action.” The Court found that there was “more than enough overlap” to conclude that the employees treated more favorably were similarly situated. Thus, the court of appeals found that the employee established a material question of fact as to whether he was punished more harshly than similarly situated employees after comparable safety violations and as to whether the stated reason for firing him was a pretext. And the court concluded, “the showing of pretext for purposes of the FMLA claim extends to the ADA claim.” Continued on page 4 © 2014 Fisher & Phillips LLP 3
  4. 4. If termination has not always been the company’s response, then ask yourself if there is a legitimate way to distinguish this situation from the others. If not, termination should wait; Termination May Not End It Continued from page 2 records establishing attendance policy violations, this decision also appears on the surface to be a no-brainer. But what if that same employee had recently complained about harassment or discrimination, or made a safety complaint, or filed a workers’ comp claim, or recently requested or taken protected leave? And, what if that same employee had a terrible attendance problem that went unaddressed before he engaged in protected activity, or you have other employees with similar attendance issues that have not been terminated? These facts may suggest that something other than attendance was the real reason for the termination decision. If you still terminate the employee under these circumstances, the only no-brainer is that you may have a chance to explain your thought process and rationale in a legal forum. Making Goodbye Mean Goodbye While not all wrongful termination claims can be avoided, employers can take some relatively simple steps to increase the chances that the termination will be the end: • • Slow down and think before pulling the trigger on a termination. Involve someone else, e.g. Human Resources, who does not have an emotional investment in the situation. That person likely will have a more objective assessment and see things you may have missed; Ask yourself, is the action we are about to take consistent with our previous actions? Review what you have done in the past when faced with these facts or this situation or one similar to it. The Labor Letter is a periodic publication of Fisher & Phillips LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP lawyers are available for presentations on a wide variety of labor and employment topics. • Ask yourself, has this person recently made a complaint, taken leave, requested leave, been involved in an investigation of misconduct or done anything else that would qualify as protected activity? If the answer is yes, ask yourself if your reason for termination is on solid ground. Hint: if you are using a dustcovered rule violation or performance standard as the basis for the termination decision, you may want to wait; • Ask yourself, will the employee be surprised at the termination? A termination decision should never be a surprise. Either the terminable offense is one that no employee could reasonably expect to get a second chance, therefore not a surprise, or the employer has diligently documented counselings with the employee that include the warning that continued non-compliance will result in further disciplinary action, up to and including discharge, thereby eliminating the surprise element; • Treat the employee with dignity and respect during the termination process, the same as you would expect to be treated. Being a jerk because you can be may make you feel good but also may give a recently terminated employee a reason to seek revenge; • Seek legal counsel before making a risky termination. The cost of this advice will be money well spent if it helps you avoid an expensive legal challenge. With patience and consistent actions, and perhaps a little guidance, employment terminations can actually be the end of the relationship. For more information contact or 404.231.1400. the author at Tenth Circuit Rules On “Termination By Committee” Office Locations Continued from page 3 Atlanta phone 404.231.1400 Gulfport phone 228.822.1440 New Orleans phone 504.522.3303 Baltimore phone 410.857.1399 Houston phone 713.292.0150 Orlando phone 407.541.0888 Boston phone 617.722.0044 Irvine phone 949.851.2424 Philadelphia phone 610.230.2150 Charlotte phone 704.334.4565 Kansas City phone 816.842.8770 Phoenix phone 602.281.3400 Chicago phone 312.346.8061 Las Vegas phone 702.252.3131 Portland phone 503.242.4262 Cleveland phone 440.838.8800 Los Angeles phone 213.330.4500 San Antonio phone 210.227.5434 Columbia phone 803.255.0000 Louisville phone 502.561.3990 San Diego phone 858.597.9600 Columbus phone 614.221.1425 Memphis phone 901.526.0431 San Francisco phone 415.490.9000 Dallas phone 214.220.9100 New England phone 207.774.6001 Tampa phone 813.769.7500 Denver phone 303.218.3650 New Jersey phone 908.516.1050 Washington, DC phone 202.429.3707 What It Means For Employers Employees may show that an employer’s defense is a pretext by providing evidence that they were treated differently from other similarly-situated, non-protected employees who violated a work rule of comparable seriousness. To be “similarly situated,” the comparator employee must share the same supervisor or decisionmaker. As the 10th Circuit noted, “This is because different treatment by itself does not always indicate pretext.” Employers often cite the fact that different decisionmakers were involved in a discipline decision to show that an employee is not “similarly situated.” That argument is often persuasive when a single decisionmaker is involved in a disciplinary decision. But this case clarifies that, where employers use group decision making to determine employee discipline, an employee need not show “absolute congruence” of the decision-making groups in order to show that another employee is similarly situated for purposes of making a pretext argument under the FMLA or ADA. Fort Lauderdale phone 954.525.4800 Fisher & Phillips LLP represents employers nationally in labor, employment, civil rights, employee benefits, and immigration matters 4 © 2014 Fisher & Phillips LLP For more information contact or 816.842.8770. the author at