Tag Archives: Termination of employment

When Being Bad Is Not Enough

Contributed by Caryl Flannery

You’ve been putting up with the employee’s tardiness and mistakes for months and you finally tell him that it’s the end of the line.  You breathe a sigh of relief that you no longer have to pay someone to sleep in every day.  Or do you?  Odds are that your bad employee will be eligible for unemployment compensation and that your tax rates will rise as a result.  With the proper procedures and documentation, however, you may be able to convince your state unemployment agency that the employee’s actions disqualify him from receiving unemployment benefits.

In most states, an employee will be disqualified from receiving unemployment benefits if the employee was discharged as result of “misconduct associated with work.”  Many employers are surprised to find that a solid “for cause” termination does not necessarily support a finding of “misconduct.” Performing a job negligently, making an error in judgment, not showing up for work on a single occasion, or not getting along with co-workers are often not considered “misconduct.”  A first offense, unless particularly egregious in terms of safety or identifiable damage to the employer, seldom is the basis for a “misconduct” determination. 

To disqualify an employee on the basis of “misconduct associated with work” an employer must show that the employee engaged in a deliberate or willful act in the face of established and known rules and after a clear warning that such behavior will result in termination.  The following guidelines will assist you in establishing disciplinary procedures and maintaining records that will support a finding of misconduct:

  • Have clear policies setting out your expectations for employee conduct, attendance, and performance.  Identify offenses for which an employee is subject to immediate discharge.
  • If you have a progressive discipline policy, follow it consistently or make sure that the policy permits “skipping” steps for particularly serious offenses.
  • When an employee violates a rule: (1) give the employee notice of the violation; (2) reiterate the rule that was violated; and (3) communicate the potential consequences of any additional violations (i.e., termination).  Giving the employee a copy of the rule is also helpful.
  • Keep contemporaneous documentation of the employee’s actions and your response.  Even a verbal warning should be memorialized in a memo. 
  • Be able to articulate the reason for termination in a simple and straightforward way that can be understood by someone who doesn’t know your business.  Although employees are often terminated as the result of a number of problems, pinpoint and emphasize the “last straw.”
  • For an appeals hearing, present as few witnesses as possible.  Prepare them well.  Giving testimony in a telephone hearing is very different from explaining what really happened.  Being able to provide the key factual elements of your case in a concise and easily understandable way is crucial. 

Since laws vary from state to state and the appeals process is usually subject to many technical rules and procedures, it is always a good idea to check with your labor and employment attorney when protesting or appealing unemployment claims.

Facebook Friends Set Groundwork for Defensible Termination of FMLA Abuser

Contributed by Beverly Alfon

Most of us are familiar with the perpetual Facebook question, “What’s on your mind?” and its invitation for you to “Check In” and let the world know where you are.  In a recent case, a registered nurse answered Facebook’s call – and found herself terminated for FMLA abuse and dishonesty. 

Carol Lineberry was a registered nurse who complained about lower back and leg pain to her employer, Detroit Medical Center.  Her doctor issued medical restrictions, including not standing for more than 15 minutes, pushing or pulling more than 20 pounds or lifting more than 5-10 pounds.  She requested and received approval for FMLA leave.  However, that same month, Lineberry went on a planned vacation to Mexico.

Lineberry posted pictures of her vacation to her Facebook page that showed her riding a motorboat, lying on a bed and holding beer bottles, and carrying her more than 15-pound grandchildren in each arm, while standing.  She also posted comments about taking care of her grandchildren.  Lineberry’s co-workers at the Medical Center, who were Facebook “friends” with Lineberry, saw the posts and complained to their supervisor.  The supervisor reported the activity to upper management. 

While Lineberry was still on leave, she emailed her supervisor to express her disappointment that no one sent her a “get well” card.  Lineberry’s supervisor responded by telling Lineberry that they found out about her vacation and accordingly, expected that she would be returning to work.  Lineberry responded by telling her supervisor that she used a wheelchair when traveling and did not walk for long periods. Shortly after that exchange, Lineberry obtained a full release to work from her doctor. 

Upon her return to work, the Medical Center followed its progressive discipline policy and conducted an investigative meeting with Lineberry.  At that meeting, she admitted that she lied to her supervisor about using a wheelchair and not being able to walk for long periods of time while in Mexico.  The company issued a termination letter to Lineberry, citing dishonesty (including FMLA abuse) as the reason for her discharge.

Lineberry filed suit against the Medical Center alleging FMLA interference and retaliation.  The court granted summary judgment to the Medical Center (Lineberry v. Richards, E.D. Michigan, No. 2:11-13752, Feb. 5, 2013).  The court reasoned that based on Lineberry’s “undisputed dishonesty… Defendants had a right to terminate Plaintiff – without regard to her leave status because FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave.”  The court also held that the employer prevailed under the “honest belief” doctrine.  This doctrine allows an employer to form a defense to FMLA claims by establishing that it “honestly believes, based on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.” The court specifically referred to Lineberry’s admissions on her Facebook page regarding her Mexico vacation and activities, and her admissions about lying to her supervisor. 

Bottom line:  Monitoring FMLA leave can be a game of cat and mouse.  This recent decision provides further support for employers’ efforts to curb FMLA abuse and is in line with the decision that the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana and Wisconsin employers) issued last year, affirming the “honest belief” doctrine as a defense to FMLA claims.  See, Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).  The employer in Scruggs hired a private investigator to gather its evidence of abuse.  However, this recent decision indicates that even evidence gathered from social media can form the basis for an “honest belief” defense against claims of FMLA interference and retaliation claims.