Posts Tagged ‘termination’

News Roundup: Study-Palooza, FMLA birthday, Out-of-This-World Workplace, Terminations & More

Wednesday, February 6th, 2013

Study-Palooza – Joe Paduda offers his analysis of work comp hospital costs as reported in WCRI’s recently released 20-state study on outpatient hospital costs. And Joe is really letting his nerd side show with a report on two other workcomp-related research studies, one dealing with back surgery outcomes and the other, the use and cost of compound medications.
Health data – While on the topic of research, you may want to bookmark the Pew Research Center’s Health research page. It offers excellent insight as to how people are using the Internet to access health-related information. A recent study shows that seven in ten (69%) U.S. adults track a health indicator for themselves or a loved one and many say this activity has changed their overall approach to health.
20 Years Today – Today is the 20th anniversary of the Family Medical Leave Act (FMLA). Occupational Health & Safety features a story on a survey conducted by the Department of Labor to learn how the law has affected employees and employers. The survey showed 16 percent of workers took FMLA leave within the last year, 56% of whom were women. More than half took leave for their own illness (57%), for new child-related reasons (22%) or to care for a family member with a serious health condition (19%). While the law is praised as “the first step in creating a more family-friendly American workplace” by many and hailed as a boon to families, there are some employees who would not agree. Plus, many employers would cite abuse, problems and confusion in implementing and complying with the law. Noncompliance can be costly – see Failing to Train Supervisors in FMLA: $1.2 Million Loss to Employer. One of the best resources we have found for keeping up with FMLA emerging issues, case law and changes is employment law attorney Jeff Nowak’s FMLA Insights. Jeff has comments about the FMLA anniversary and the DOL survey results, which he calls “curious.”
Terminations – Sharon Lauby hosts a blog delightfully name blog, HR Bartender, well worth keeping on your radar. She recently posted about How to fire an employee. This week, she followed up with Terminating Employees: How To Fire Right, which includes a valuable guide from employment law attorney Mark Neuberger, which you can download at no cost, and with no registration required. The first line in this guide gives a reason why you should go there and download it now: “Every termination decision should be based on the assumption that it will be challenged before an administrative agency, a court or both.”
Out-of-This-World Twitter posts – Some people’s work environments are a little more interesting than yours and mine. Canadian astronaut Chris Hadfield stunning images taken from the international space station. You can follow his Twitter feed for more: @Cmdr_Hadfield.
News Briefs

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Retaliation in Ohio: Fire in Haste, Repent at Leisure

Monday, June 13th, 2011

DeWayne Sutton worked for Tomco Machining in Dayton, Ohio. When he hurt his back while dismantling some equipment, he followed “best practices” and reported the injury immediately to company owner Jim Tomasiak. The boss pulled a “Trump” – deviating 180 degrees from “best practices” by firing Sutton immediately. No reason was given for the termination. As you would expect, Sutton was able to collect comp benefits (termination is no bar to eligibility), but could he also sue for wrongful termination? In other words, was the termination retaliation for reporting the claim?
Under the Ohio statute, employers are prohibited from firing, demoting or taking punitive action against an employee who files a workers comp claim. The question at issue is one of timing: the claim had been reported to the employer, but not yet filed with the insurer. So did Tomasiak violate the law by firing Sutton in the interval between the injury and the report to the insurer?
Begging to Differ
In a sharply divided opinion (4-3), the Supreme Court of Ohio found in Sutton’s favor, sending the case back to the lower court for reconsideration. Chief Justice Maureen O’Connor, writing for the majority, notes:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits.
The alternative interpretation – that the legislature intentionally left the gap – is at odds with the basic purpose of the anti-retaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

The court minority noted that Sutton was able to collect comp benefits – kind of “no harm, no foul.” Then, as Justice Terrence O’Donnell notes:

The majority has today expanded the public policy behind the provisions of (state law) to apply to those persons discharged before filing, instituting or pursuing a workers’ compensation claim. This allowance is a legislative prerogative, and in my view, we should follow the law as written and defer to the General Assembly, instead of stretching the extent of protection to fit situations not addressed by the statute.

This is familiar territory in the world of law: liberal interpretation (the majority) versus strict construction (the minority). One vote determined the outcome.
The Biggest Loser
Business owner Tomasiak comes away with a double whammy: he is liable for the comp claim through the experience rating process; having fired Sutton, he is unable to lower the cost of the claim by bringing Sutton back to work on modified duty. Then he faces a wrongful termination lawsuit, which he is probably going to lose. The timing of his action, along with the absence of any stated rationale, reak of retaliation.
Tomasiak’s impulsive response to Sutton’s injury violated Rule Number One for employers: if employees are not working out, fire them before they get hurt. Once they are injured, comp laws pretty much assume that any firing would be retaliation. For Tomasiak, just trying to run his machine shop in Dayton, Ohio, this is a tough – and expensive – lesson in best practices.

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Medical Marijuana: Walmart Wins! (Walmart Loses)

Monday, February 28th, 2011

We have been following the sad saga of Joseph Casias, a former Walmart employee in Battle Creek, Michigan. Casias, 29, suffers from a sinus cancer and an inoperable brain tumor. (He looks so much older than his years.) After 5 unusually successful years as a Walmart employee, he injured his knee on the job, after which he underwent a mandatory drug test. Casias has a prescription for medical marijuana (legal in Michigan). Inevitably, he failed the drug test. Walmart fired him.
He sued for wrongful termination in federal court. He lost.
Judge Robert Jonker found that while Casias’s use of marijuana was legal, Walmart was within its rights to terminate him. Nothing in the Michigan statute legalizing pot regulates private employment. As we pointed out in a recent blog, the issue of legal drugs in the workplace is a gray zone of formidable dimensions. Employers will usually err on the side of caution, as the exposures for negligent retention appear to outweigh the pressure to accommodate disabled employees. Hence, Walmart wins.
What is lost in the standard personnel procedures that identified Casias as a (legal) drug user and terminated his employment is a simple fact that may or may not concern Walmart. Casias was a highly motivated and valued employee. His work was exemplary. Workers like Casias are not easy to find, especially when the pay is marginal. It’s worth a little extra effort to hold on to them. By following their own rules to the letter, Walmart wins in court but loses on the selling floor.
Legally Disemployed
Even though states are showing some flexibility in their approaches to marijuana, legalization is no help to workers who have a prescription for the drug. These folks will routinely fail post-accident drug tests. As a result, any injury to a worker using medical marijuana will result in a termination. Zero tolerance, zero employment.
We are not suggesting that states attempt to preempt the rights of employers in statutes that legalize marijuana. With so much at stake, with so many complex risk factors at play, employers must have the final say in who works and who is let go. We can only hope that employers use their powers – dare I say it? – compassionately.
Did Walmart have an alternative? With his serious illness, Joseph Casias appears to meet the ADA’s definition of disabled. Walmart could have approached the dilemma through the ADA accommodation process. After Casias failed the drug test, they could have determined: first, that the drug was prescribed; second, that the drug use was not a factor in his injury; and third, that there have been no indications that his drug use has impacted his performance on the job. Having passed this three-pronged test, Walmart could have decided to “accommodate” Casias’s disability by waiving the drug test results and retaining him as an employee.
Alas, in the world of huge corporations, the fate of one man just isn’t worth that much effort. Why bother being flexible when it’s so much easier – and perfectly legal – to show employees the door?
You know the Walmart motto: Save money. Live better. Nothing in there about doing the right thing for the likes of Joe Casias.

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Posted in Disability, Medical Issues | 1 Comment »

Can You Terminate an Employee on Workers Comp?

Tuesday, June 2nd, 2009

Here’s a question that comes up frequently in our employer seminars: can you terminate an employee who is on workers comp? In general, it’s not a good idea. In many states there is a presumption that the termination is in retaliation for filing the comp claim. Nonetheless, the complete answer to the question is yes, you can, but you must do it very carefully.
The invaluable Risk and Insurance Magazine describes a case in Texas that illustrates this point nicely (Williams v AT & T, U.S.District Court, Southern Texas). Williams, a telecommunications tech, alleged that he sprained his leg stepping down from a ladder. He was a bit confused about the exact date, offering more than one in his descriptions of the incident. His claim was denied. One month later, he violated an important company policy and was suspended and then terminated. Even though his comp claim was denied, he alleged that he was terminated in retaliation for filing the claim. He sued AT & T for violating the Texas comp act.
Keep in mind, the employer must be able to demonstrate that the termination had nothing to do with the (denied) claim. In this situation, the burden of proof is definitely on the employer. AT & T presented evidence that Williams had a history of poor performance and excessive disciplinary actions for more than a year prior to the alleged injury. In other words, two key criteria of proof were met: the disciplinary problems preceeded the workers comp incident and they were thoroughly documented.
The court granted summary judgment to the employer. While falling under the protected class of employees who have filed comp claims, Williams could not establish that his termination was related to the comp claim. There were plenty of other reasons for the employer’s actions.
I often hear employers complain that they had been planning to terminate a marginal employee, but then the employee got hurt. In most cases, there is inadequate documentation of poor performance prior to the injury. These employers are stuck: any attempt to document performance issues after the injury will be viewed sceptically by the court. The termination will trigger retaliation claims.
Here is a quick tip to avoid this situation: fire marginal employees before they get hurt. Once employees are injured on the job, an employer’s options narrow significantly. Given that marginal employees are more likely to be injured – that’s part of what makes them marginal – prompt action to end their employment is an essential “best practice.”

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Posted in Best Practices, Compensability | 8 Comments »