General manager Mike Andrews gathered up his paperwork as he spoke: “So, Jen, you’ll be sure to take care of everything involving Len Barker’s termination?”

“Sure, if that’s the decision you’ve made,” answered Jen Durso, the HR manager. “I would like to raise one issue before we proceed.”

“Go ahead, please,” Mike encouraged her.

“This termination is going to come less than 60 days after Len complained to the state about safety problems in the warehouse,” Jen noted. “That could look fishy.”

“Oh, that,” Mike nodded. “We did a thorough investigation about Len’s complaint. Even had an outside guy come in and look at it. We got a clean bill of health on that – no violation.”

“That’s true enough,” Jen agreed. “Still, it could look as if we’re firing Len because he complained about a safety issue.”

“As I see it,” Mike broke in, “there was no violation and we’re terminating Len clearly for performance, not the complaint.”

When Len was terminated, he filed a lawsuit charging the company acted out of retaliation for his safety-violation complaint. The company noted there was no violation and asked a judge to throw the case out of court. Did the company win?

The decision

No. The judge refused the company’s request to throw the case out and allowed it to go to trial – and a likely hefty cash settlement negotiated outside the courtroom.

The judge said the firing indeed looked suspicious, coming on the heels of Len’s complaint about a safety violation. When it looks suspicious, it goes to trial.

What about the fact that Len’s complaint ended up being nothing more than that – a complaint – and the company had committed no violation? Doesn’t matter, the judge explained. The employee doesn’t have to prove the validity of his complaint to show there was retaliation. He complained, and he got fired. Let a jury decide if one and one equal two.

One more thing, the judge noted: Safety complaints involve matters of “public policy” since possible violations affect more than just the single employee. As such, those complaints – even more than others – fall under special legal protections.

Important supporting docs
When an employee complains about something as serious as safety and then gets fired, your managers have to be certain to have the right documentation. There’s not much you can do to stop an employee who’s bent on suing, but you can prepare a good defense.

Cite: Kohrt v. MidAmerican Energy Co.

Well, the courts do. And that’s good news for employers looking to keep insurance premiums down.

That exact situation caused a court in Illinois to deny a claim for workers’ comp benefits.

What happened

A man claimed he was injured three different times (on three separate occasions) at work. However, he reported the injuries 15 weeks after the first alleged incident, seven weeks after the second and a week after the third.

Two other problems:

• Throughout those 15 weeks the worker saw his primary care doctor and chiropractor several times — and never mentioned anything about a work injury, and
• His manager said he couldn’t link his medical condition to a specific work incident when he finally did report the injury.

Case closed: The man’s request for workers’ comp benefits was denied.

Have you every come across a situation like this? Tell us about it in the Comments Box below.

Cite: Hosteny v. IL Workers’ Compensation Commission

What happened

Jesse Cooper, a master plumber and foreman, was on location to discuss the details of a job with a customer.

But when he arrived at the customer’s facility, he found the person he needed to talk to wouldn’t be available for 45 minutes. So Cooper decided to get a cup of coffee at a local deli.

On his way there, Cooper was involved in a car accident that broke one of his arms and both of his legs.

He was granted disability, but his employer appealed, arguing the accident happened on an errand that wasn’t work related.

The court’s decision

A judge upheld the comp award. The judge said injuries that occur during “minor deviations” from employment are covered by workers’ comp if the employee works off site and doesn’t report to the same facility every day.

Do you agree with the judge’s decision? Let us know in the Comments Box below.

Cite: Cooper v. Barnickel Enterprises

The scene:

HR manager Trish Albright slid the paperwork across the table while explaining to Mac Herron, “Just sign where indicated and we can finish up what’s needed for your workers’ compensation claim.”

Mac picked up a pen and began signing as he spoke: “I’m still not happy. That nut-case Steve attacks me on the job for no reason, breaks my arm, and all I get is comp.”

“I can understand how you feel,” Trish replied.

“ Well, then, why didn’t someone here know about his violent history?” Mac shot back. “I heard he got fired from another company for fighting. Isn’t it HR’s job to know about this stuff when someone gets hired?”

No one mentioned it

“That came out after the fight with you,” Trish explained. “When we did a hiring check on Steve, his old employer never mentioned anything like that.”

“And the result is that you let some maniac in here who ends up attacking me,” Mac said loudly.

“We don’t think we reasonably could have done more to find out about Steve’s violent background,” Trish said. “But we are living up to our obligation by paying you comp as a result of the injury.”

“You may think that’s enough, but I don’t,” Mac said. “Let’s see what a lawyer says.”

Mac eventually sued the company for damages over the injury. The company said paying comp was enough to make up for the problem.

Did the company win?

Answer

Yes, the company won.

An appeals court ruled workers’ compensation was a suitable remedy for the injury Mac suffered during the attack by Steve.

Two factors led to the decision:

In many states, employees who receive workers’ compensation for an on-the-job injury can’t turn around and sue the employer for circumstances surrounding the injury unless the employer was grossly negligent.

Trisj had done the usual background checks before hiring Steve, and nothing fishy turned up. Had his violent history become known – and ignored – during the checks, the outcome of the case might have been different.

Not Sherlock Holmes, but …

You know you can only go so far when it comes to doing a background check on job candidates. But the ruling shows if you do uncover something suspicious, you better take action and either determine there’s nothing to the suspicions or there’s enough to deny employment.

Courts don’t necessarily expect HR managers to be Sherlock Holmes and uncover every hidden detail about a candidate’s background. They, however, do expect companies to do reasonable checks and act on anything – such as a history of harassment or violence – that might disqualify the candidate.

Cite: Peterson v. Arlington Hospitality Staffing, Inc.

What happened

The company argued that the employees were “illegal aliens,” and therefore weren’t protected under the Fair Labor Standards Act (FLSA).

But the court ruled that didn’t matter. The FLSA is meant to protect all employees — regardless of immigration status — from abuse.

So the company lost its fight to get the case thrown out.

Do you think the court made the right decision? Let us know in the Comments Box below.

The scene

“Let’s go over this one more time,” HR manager Tina Rice said. “Did you tell Norman he could have a job here ‘as long as you want’?”

“Not exactly,” Michael answered. “At a meeting with some other employees, I congratulated him on completing his probation period and said something like, ‘Now you’re on the right track to be a lifetime employee here.’”

“Maybe I also said something about how we ‘never’ fire anyone here, too.”

“That about matches what the others say they heard,” Tina nodded. “But that’s the basis for a lawsuit Norman is bringing against us.”

“But the guy made a mess of things right after he got off probation,” Michael insisted. “I had no choice but to fire him. Everyone who worked with him realized that.”

“Agreed,” Tina affirmed. “The question now is whether what you said amounted to a promise. We’re in an at-will state. That means we can terminate anyone for any reason, as long as we don’t discriminate.”

‘It’s settled’
“Then that settles it,” Michael concluded.

“We’ll see,” Tina said.

Norman went ahead with the suit, saying he had an oral employment contract with the company. The company said no such agreement existed.

Did the company win?

Answer

Yes, the company won.

Three key factors shaped the judge’s decision:

• An implied, vague oral promise isn’t strong enough to overcome the at-will agreement (which also says an employee can quit at any time).
• The company had plenty of obvious performance-related causes to terminate.
• Although the supervisor’s comments could be broadly interpreted by some as a promise, holding the company to that interpretation would tie the supervisor’s hands and stifle any encouraging conversation.

The judge recognized there was no attempt to pull a fast one or renege on an agreement between employer and employee, and that the supervisor’s comments couldn’t be considered a “contract.”

Don’t ignore the obvious
This one went the company’s way, but there are steps a supervisor can take to ensure there are no misunderstandings with employees – and no messy lawsuits.

Certainly, supervisors want to praise employees when they’re doing a good job. But when offering praise, bosses should try to avoid comments about continued employment or, for instance, promises regarding promotions.

[Based on: Wright v. Northrop Grumman Corp.]

What happened

A female worker was injured while traveling to a shopping center to buy food and gifts for a holiday party at her employer’s office.

Her husband was driving her to the shopping center when he lost control of his truck. It struck a median and rolled over several times.

The worker then applied for workers’ comp. Did she get it?

The decision

Yes. A workers’ comp judge concluded she should collect comp benefits because she was injured while performing a work-related duty that benefited her employer.

The judge’s reasoning: Her employer supported holiday parties as a way to build teamwork. Plus, the worker was on call at the time of the crash.

Her employer appealed the comp award to a workers’ comp board, a state appeals court and finally the state supreme court. At every step, the decision was upheld.

Cite: Casarez v. Davita, Inc.

The scene

“I don’t know what else to say, except the obvious,” supervisor Arlene Franco said into the phone. “We’re going to have to let you go for violating your terms of employment here.”

“That can’t be,” Craig countered. “You’ve seen the note from my doctor saying I have strep throat and should stay out of work. Do you want me to come in and spread it to everybody?”

“That’s not the point, Craig,“ she explained. “We have a signed agreement from you that if you take any more time off this year – for any reason – you’re terminated, no ifs, ands or maybes.”

“Sure, I signed that because I’d get fired if I didn’t sign it,” he noted. “So I’m in a no-win situation. I’m gone if I don’t sign, and I’m gone if I sign. That’s not fair.”

“Let’s get the facts straight,” Arlene said. “We drew up that agreement after you’d taken way too many sick days, some without a doctor’s note.”

Not perfect
“OK, I know I haven’t been the perfect employee,” he admitted. “But c’mon, Arlene, it’s for real this time. I’m really sick.”

“I’m not arguing that,” she replied. “I’m just telling you we have a a signed agreement, and you’re violating it.”

Craig was fired and sued for wrongful discharge, noting that he had a contagious illness verified by a doctor. The company said a deal is a deal, and Craig defaulted on the agreement.

Did the company win?

Answer:

Yes, the company won. A judge said the agreement was fair and legal, and that the employee had willingly signed it.

The employee tried to argue the situation presented special circumstances – that a doctor had verified the illness and ordered Craig to stay out of work, meaning the employee had no choice but to take sick leave.

No dice, the judge said. The agreement said termination was for missed time for “any reason.”

Drawing up employment ‘contracts’
As part of an employee’s appraisal or personal-improvement program, some supervisors like to draw up a “contract” that gets the employee to commit to a level of performance or behavior: For example:

“You (the employee) agree to (perform or behave at a stated level). If you fail to (perform or behave at the stated level), the penalty will be _________ .”

Then you get the employee’s signature on the agreement.

Two bases to touch when writing one up:

Make sure the agreement fits your organization’s policies (and what’s been done with other employees), and

Be sure you don’t ask the employee to do something that’s illegal or unethical.

[Based on: Zwygart v. Board of Commissioners of Jefferson County, KS]

An Illinois man filed for a disability pension, claiming he was unable to do any work — and then he turned around and sued his employer for failing to accommodate his disability.

Tried to double dip

Here’s what happened: A police officer developed chronic obstructive pulmonary disease, a condition that makes breathing difficult.

His doctor cleared him for light duty, but no such positions were available. So the officer applied for a disability pension.

During a hearing, the man testified that his condition made it impossible to fulfill a police officer’s normal duties — “chasing a suspect or wrestling with an unruly one.”

Result: He was granted the pension.

But then he sued the department under the Americans with Disabilities Act (ADA), claiming it should’ve accommodated his disability by putting him on light duty.

The court wasn’t impressed. Taking his hearing testimony at face value (remember when he said he couldn’t fulfill an officer’s normal duties), the judge said, there was no way the man could do the job — with or without an accommodation.

Can’t claim one thing in one hearing and then deny it in another, the court ruled. So it dismissed the ADA suit.

Cite: Butler v. Village of Round Lake

The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.