Category Archives: Discipline and Termination

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Massachusetts Has Legalized Marijuana — Should Your Workplace Policies Go Up in Smoke?

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On November 8, 2016, voters in Massachusetts (along with their counterparts in Maine, California, and Nevada) voted to legalize the recreational use of marijuana. This means that recreational marijuana use is now legal in eight states (California, Alaska, Oregon, and Washington already have passed similar measures).… Continue reading this entry

What Past Practice?? NLRB Overhauls Back Pay Formula

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The National Labor Relations Board (NLRB) has done it again. Over the last few years, the NLRB has provided no shortage of topics for us to discuss, because it has made no secret of its aggressive agenda to expand employee protections under the National Labor Relations Act (NLRA), making rules and issuing decisions in furtherance … Continue reading this entry

Fired For My Firearm? I’ll Sue!

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As if employers already did not have enough reasons to have to think through termination decisions carefully, here is yet another “trigger” word that should make employers think twice about plans to discipline or fire an employee: guns. Before terminating an employee for bringing one (or more) gun to work, make sure state law does … Continue reading this entry

Getting Past “Not Horrible”: Addressing Office Bullies is Good for the Bottom Line

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A Dallas jury recently awarded a verdict of more than a million dollars to a vocational nurse based upon her claims of sexual harassment and intentional infliction of emotional distress. While it appears that verdict will not ultimately be enforced — following a post-verdict settlement reached between the parties just minutes before the jury’s ruling … Continue reading this entry

When is Aberrant Workplace Behavior Sufficient to Justify Termination?

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Aberrant workplace behavior caused by stress or a psychological condition is not uncommon. However, such behavior can also cause employers to become anxious regarding how to lawfully deal with the disruption and its effect on co-workers. The United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) recently provided guidance.… Continue reading this entry

Top Five Best Practices for Workplace Investigations

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A well-conducted investigation can reduce workplace conflict, promote job satisfaction and inclusion, and can also help shield you from legal liability. However, the converse is also true — a botched investigation can have enormous implications, both from a business and legal perspective. Fortunately, there are a number of simple steps you can take to ensure … Continue reading this entry

Connection to Someone With a Disability is Nearly Identical to an Actual Disability

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As disability discrimination and accommodation claims continue to rise across the country, an appellate court in California may have just helped significantly expand such claims in the future by finding that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son.… Continue reading this entry

Just Like Hollywood, Big Pictures are Best in Termination Decisions

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A federal appeals court recently revived a former employee’s gender discriminatory discharge claim even though there appeared to be legitimate reasons for her termination. The decision suggests that employers take a big picture look at termination decisions based on a specific instance of misconduct rather than a more narrow view assessing the misconduct at issue … Continue reading this entry

Tips for Avoiding “Convincing Mosaic” of Discrimination

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After retaining an employee through two year-long tours of duty in the Middle East and countless military drills amounting to 900 total days of absence, allowing the employee to modify her schedule to account for her military leave, and providing several accommodations when the employee returned from war diagnosed with post-traumatic stress disorder, you might … Continue reading this entry

Cat’s Paw, Part II: “Termination Review” by Independent Decision Makers Can Break the Causal Chain

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Last week, we wrote about the “Cat’s Paw” theory of liability —where a person is used unwittingly to accomplish another person’s discriminatory purpose in the workplace. A common example would be when a racist employee unfairly “frames” a black employee and a supervisor then disciplines the black employee based on information provided by the racist employee, … Continue reading this entry

“Cat’s Paw” – Or Perhaps “Tiger’s Paw” Theory Now

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For those interested in the origin, the term “cat’s paw” derives from a fable of a monkey who employs flattery to convince a cat to pull chestnuts out of a fire. Today the term commonly refers to a person used unwittingly or unwillingly by another to accomplish the other’s own purpose. In the employment discrimination context, … Continue reading this entry

Separately Assessing Separation Agreements

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Separation or severance agreements —which typically provide a terminating employee with some kind of cash payment, temporary salary continuation, or other gratuitous benefit in exchange for a release of claims — have their usefulness in many circumstances. Employers often use them in connection with reductions in force, both as a means to cushion the blow … Continue reading this entry

Unfortunately, Offensive Racial Comments Don’t Always Get You Fired (At Least Under Labor Law)

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Under the National Labor Relations Act, certain union activities are considered “protected.” That is, employees engaging in union activity, or union representatives carrying out their duties in the context of grievance processing or labor negotiations, are sometimes protected from discipline even though their conduct would otherwise normally result in discipline under their employer’s policies. For … Continue reading this entry

Breaking Up Is Still So Hard to Do: DOL Clarifies H-1B Bona Fide Termination Rule

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Employers must navigate through a maze of complex regulations when seeking H-1B temporary authorization to hire foreign nationals in specialty occupations. Yet, as hard as it is to hire H-1B employees, it can be even more difficult and costly to fire those employees unless special procedures are followed. For years the United States Department of … Continue reading this entry

DACA and DAPA and Form I-9, Oh My! Does Prior Document Fraud Require Termination?

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President Obama’s recent decision to take executive action on immigration may cause confusion for some employers with regard to Form I-9 compliance. The action includes two initiatives that potentially impact Form I-9 recordkeeping — enhancements to the Deferred Action for Childhood Arrivals (DACA) program and the creation of a similar program for parents of U.S. citizens … Continue reading this entry

Employer’s Super Anti-Harassment Policy May Increase Its Liability

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A federal court in Connecticut recently concluded that a fired employee could have a valid disability harassment claim based on statements prohibiting all harassment contained in the employer’s personnel manual. The company manual did not have standard “this manual does not create contract rights” language and stated that it prohibited any inappropriate workplace conduct, “not … Continue reading this entry

Marijuana Card Saves Unemployment Benefits, Not Job

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In the rapidly evolving interplay between federal and state employment laws, state medical marijuana laws, and employer policies seeking to maintain drug-free workplaces, an appellate court in Michigan has just concluded that while having a medical marijuana card cannot save your job with a private employer after a positive drug test (as concluded by a federal … Continue reading this entry

When Xs and Os Go Awry: Recent College Coach Lawsuits Emphasize the Importance of Good Contract Language Even for “Intramural” Employers

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The recent flurry of scandals in professional sports, particularly those from the NFL that dominated headlines in recent weeks, are not without their counterparts in the college ranks. Indeed, in the past year there have been an increasing number of controversies involving college coaches, which in turn have led to terminations and wrongful termination lawsuits. … Continue reading this entry

No Coach Necessary for Potty-Mouth Employee

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As we have recently noted, and as many employers have probably bemoaned a time or two, sometimes it feels like the legal concept of “reasonable accommodation” has little to do with real-world notions of what is reasonable, particularly when courts are telling employees they might have to allow admitted employee theft as such an accommodation. … Continue reading this entry

Rampant Sexual Misconduct in Indiana Prison Shows Pitfalls for Employers

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“Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested … Continue reading this entry

Gotta Pass the Smell Test, Too

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A Florida court recently let a claim proceed under the Americans with Disabilities Act (“ADA”), even though the employee had been terminated for a positive drug test and the ADA has a specific exclusion for current drug users. In legal terms, the court denied the employer’s initial motion to try and have the case dismissed – … Continue reading this entry

Now I Have to Allow Insubordination and Verbal Abuse Too?

Several weeks ago, in both a tongue-in-cheek and concerned fashioned, we wrote about a federal court decision that concluded an employer had to tolerate an employee’s admitted theft as a reasonable accommodation for her disability. As part of that commentary, we observed that government agencies such as the Equal Employment Opportunity Commission are clearly pushing … Continue reading this entry

Colorado High Court to Rule on Rocky Mountain High

The issue of medical marijuana continues to make news in Colorado and across the country. Earlier this year, the Colorado Supreme Court agreed to hear an appeal of the 2013 Colorado Court of Appeals ruling in Coats v. Dish Network, which analyzed the relationship between Colorado’s medical marijuana law and Colorado’s Lawful Activities Statute. The Lawful … Continue reading this entry

Funeral Leaves Are Not Always What They May Seem

We often counsel employers to be wary of employment law considerations in situations that may not seem obvious at first glance.  For example, prohibiting employees from using certain language on social media sites has proven to be a problem, even for non-union employers. Employers also thought they were on firm ground by refusing to hire … Continue reading this entry