It’s not easy being Market Basket. First you have a major corporate shake-up involving the controlling family who have been fighting for years. Then your workforce objects to the Board’s actions and tries to get the Board to reverse course. This dispute results in the effective shut down of many Market Basket stores. Then management decides to get tough and threatens to fire and replace employees who won’t return to work. They even organize a jobs fair. (A risky strategy and horrible PR move, in my opinion. If it fails, they have no next step.) Continue reading
Category Archives: Terminations
Reducing Risk With Comprehensive Investigations and Documentation
On February 28, 2014, a Massachusetts court dismissed a discrimination claim brought by three employees against a nursing home base in part on the employer’s detailed investigation and written record of discipline. The case Metelus v. Wingate Healthcare, Inc., demonstrates the importance of thorough and well documented investigations and discipline.
What You Need To Know. When faced with a discrimination claim, employers need evidence showing how employees were treated fairly and consistently. A thorough investigation into employee misconduct and well documented disciplinary warnings will help significantly if a court has to review a termination.
In the Metelus case, three nursing assistants were terminated for refusing a supervisor’s request that they work on another floor to meet patient demand. The nursing assistants threatened to walk off the job if ordered to change floors. Instead of disciplining the three employees on the spot, Wingate’s Nursing Director promptly conducted a thorough investigation. Continue reading
If You Can’t Say Something Nice . . . . What Not To Say To Staff After Terminating An Employee
On January 28, 2014, the United States District Court for the District of New Hampshire issued an opinion allowing a defamation case to proceed against an employer who said an employee was terminated for performing a “heinous act” or a “heinous crime.” Grivois v. Wentworth Douglas Hospital.
What You Need To Know. After terminating an employee, a company should provide other employees with minimal information concerning the reason for the termination. While telling employees that there were performance problems or that the employee was not “a good fit” is probably acceptable, – as long as the statements are true – employers should not provide greater detail or make statements that include personal information or cast the terminated employee in a bad light.
Grivois sued for defamation because a supervisor allegedly told people she was fired for “a heinous act” or “a heinous crime.” Continue reading
Retaliation: The Hardest Claim To Defend
On September 12, 2013, the Massachusetts Commission Against Discrimination (“MCAD”) issued a decision finding that a company illegally retaliated against an employee who had recently complained of discrimination. The case, MCAD v. Saybolt, LP is discussed below.
What You Need To Know. Anytime you want to discipline or terminate an employee who has complained of discrimination or any violation of law, you must recognize that your action could be seen as illegal retaliation. Before taking any action, you should review the facts and make sure your decision to terminate or discipline the employee hasn’t been influenced, at all, by the employee’s recent complaints. Further, since your decision could easily been seen as retaliation, you should consider slowing down your process and taking less drastic steps to help improve a problem employee. Only after your efforts to help the employee have failed should you move forward and terminate someone based upon performance if the person has recently filed a complaint.
This ruling by the MCAD discusses a classic case where a company has trouble managing an employee who has complained that a manager discriminated against the employee. Continue reading
Investigations, Done Right, Won’t Cause a Workers’ Comp. Problem
The Massachusetts Appeals Court issued a ruling on October 18, 2013. that an employee could not collect worker’s compensation for a stress injury arising from a workplace investigation. The case, Upton’s Case, is discussed below.
What You Need To Know. Done correctly, an investigation into employee misconduct that causes an employee to leave work with a stress related injury will not support a workers’ compensation claim. However, a poorly handled or abusive investigation, could be the basis for a claim. So, before beginning an investigation into employee misconduct, you should review the matter with counsel to ensure your plan and methods are acceptable.
This case exemplifies every HR persons worst nightmare. Continue reading
The Benefits of an Independent Attorney Investigator
On October 7, 2013, the United States District Court in Massachusetts issued a ruling discussing the potential problems associated with hiring your defense lawyer to perform investigations into employee misconduct. The case of Koss v. Palmer Water Department is discussed below.
What You Need To Know. If you want to conduct an investigation into employee misconduct. You need to bring in an independent investigator as opposed to your regular defense counsel. Because the investigator could be called as a witness at a subsequent trial and ordered to turn over all his or her work papers, you don’t want your defense lawyer conducting the investigation, testifying as a witness, and being barred from representing you.
The Palmer Water Department received a sexual harassment complaint brought by one of its employees. If that happened to you, what to do? Continue reading
Get Your Story Straight Before You Terminate
Here is a great example of how management’s poor planning (and stupidity) can really help an employee’s lawsuit against the company. The court decision discussed, (Hollingsworth v Sheriff’s Office of Winn Parish, was issued on October 3, 2013.
What You Need to Know. The key lesson from this case is that employers need to think through the reasons for a termination before taking action, provide terminated employees with accurate explanations for the termination, and make sure the companies actions remain consistent with that explanation even after the termination is complete. Do not lie to an employee about a termination because, as you will see below, the lie could come back to bite you in court. Continue reading