Favorite Firings – Next in the Series: Fired for Donating an Organ

Would you donate a kidney to your brother?

Here’s a recent Missouri case that makes me wonder “what was this employer thinking?” I don't think all terminations resulting from an employee’s medical issue are against public policy. But in most cases, showing a little compassion is the right thing for an employer to do. Managers should think long and hard before firing an employee with a serious medical situation.

The Facts: In Delaney v. Signature Health Care Foundation, No. 97419, 2012 LEXIS 694 (Mo. App. E.D., May 22, 2012), Norton, J., the Missouri Court of Appeals decided that Phyllis Delaney had been wrongfully terminated for taking time off to donate a kidney to her brother.

Ms. Delaney worked for Signature Health Care Foundation as a data entry clerk. When her brother needed a kidney transplant and she was a match to provide him with a kidney, Ms. Delaney told her employer that she would be off work for four weeks. According to Ms. Delaney’s allegations, Signature Health first approved her absence, then changed its mind three days before surgery and fired her.

Missouri is an employment-at-will state, which means that an employer can fire an employee for any reason, or for no reason, but not for an illegal reason. Missouri recognizes a “public policy” exception to the employment-at-will doctrine – an employer may not fire an employee for a reason that is contrary to well-established public policy in the state. Specifically, the Court of Appeals in Delaney said:

“Missouri Courts have recognized four categories of the public policy exception to the at-will-employment doctrine. Specifically, an employee has a cause of action when he or she has been discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy; (3) acting in a manner public policy would encourage; or (4) filing a claim for worker's compensation. Hughes v. Bodine Aluminum, Inc., 328 S.W.3d 353, 356 (Mo.App.E.D.2010).” 

In her lawsuit, Ms. Delaney claimed that Signature Health had wrongfully terminated her employment in violation of Missouri’s public policy encouraging organ donation. Signature Health won a dismissal of the lawsuit in the lower court, but the Missouri Court of Appeals reversed.

Based on a review of several Missouri statutes, the Court of Appeals held that Missouri public policy does encourage organ donation. Therefore, firing an employee because he or she is an organ donor gives the employee a claim under the public policy exception to Missouri’s employment-at-will doctrine. Ms. Delaney deserves her day in court, according to the Court of Appeals, and she will now have an opportunity to prove that in fact she was discharged because she had decided to donate the kidney to her brother.

The Moral: Before managers decide to fire an employee, they should take a step back and think about how the termination would look to an outsider. I always told managers to ask themselves how the case would look in the newspaper, or if they were telling their mother about the situation. If you don’t want to explain yourself to the public or to your relatives, then the termination is probably not a good idea.

In this case, would any rational manager want to explain that they fired a woman because she was going to give her brother a kidney?

In addition, managers should consider whether there are any statutes or regulations that might support a public policy claim like in the Delaney case. If there is any question, talk to an attorney who specializes in employment law.

Ms. Delaney has not yet won her case. It might be that the employee’s absence in this case would truly cause the employer a hardship, and the employer might be able to prove that public policy does not require them to endure the hardship to support her organ donation. But Signature Health had better be able to prove some defense that overcomes the policy in favor of organ donation at trial. Could they not have hired a temporary data entry clerk for the work that Ms. Delaney would miss for four weeks?

In my opinion, they are facing an uphill battle in the court of law and in the court of public opinion. What do you think about this situation?

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I’m still soliciting ideas for stories on workplace terminations to publish. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story. I will only publish verified stories.

Favorite Firings – Third in a Series

I’ve received some suggestions from readers on “favorite firings” to feature in this series. Here’s another good one. This story involves a situation that could have been tragic, but ended up being humorous.

The Facts:  A married female employee (we’ll call her Ursula) was having an affair with a male co-worker (John).  Ursula’s husband (Karl – not employed where Ursula and John worked) found out about the affair.

Karl was drinking one evening at the local pub, and decided he’d had enough of Ursula’s behavior.  He brought his shotgun into Ursula’s workplace and shot the lock off the doors into her department.

When Karl saw John, he aimed at John and fired, but thankfully missed.  Karl's bullets did destroy the soft drink vending machine on the premises, however.

After shooting at John, Karl sobered up slightly and raced out to his pick-up in the parking lot.

By the time Karl left, other employees had called the police. Karl was still drunk enough when he reached his truck that his driving was not of the highest caliber. He drove straight into the police car that had just arrived at the parking lot and still had its siren blaring and lights flashing.  The police easily apprehended Karl after the crash.

The company decided to fire both Ursula and John, because of the disruption and danger their affair had caused.  No, they weren’t fired for the affair itself, but because it led to danger to their co-workers.

John moved on with his life (presumably without Ursula).  But Ursula sued her employer for permitting her to engage in what she called “extracurricular marital affairs.”  In a rare display of prompt justice in employment cases, the judge quickly dismissed the lawsuit.

As a side note, Karl also sued.  He sued the pub for letting him get drunk. His case was also dismissed.

Not much has been heard from Karl or Ursula since.

The Moral:  The point of this story is not to make light of workplace violence, which is a serious problem and often leads to tragedy.  This case could have ended with employees and others dead or wounded.

In this case, the employer incurred some legal risk in firing Ursula and John, because their affair was not work-related behavior.  However, the consequences of them mismanaging their private lives had an impact in their workplace, and endangered their co-workers.

Because the employer treated both employees the same, there was no gender discrimination claim.

Many employees do not take responsibility for their own behavior and deserve to be fired. Ursula’s reaction in filing a lawsuit blaming her employer for her affair clearly fits this category.

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Remember, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.

Contented Cows: Leaders’ Accountability Keeps Employees Engaged

One newsletter I have followed for many years is Contented Cow Partners: Connecting people and profit, by Bill Catlette and Richard Haddon.  The name of their blog comes from the saying “Contented cows give more milk” . . . which they use as a metaphor meaning “engaged employees are more productive.” Bill and Richard write about leadership and employee engagement, and they provide thoughtful commentary on today’s workplaces.

Recently they have posted two articles with important points about leadership accountability.

Accountability for Terminations:  On April 25, 2012, Bill Catlette wrote about employee terminations – the tough side of being a leader. After my recent piece on “favorite firings,” I found Bill’s comments thought-provoking.

He described the circumstances when employee terminations are necessary: Leaders get paid to fire people whose performance or behavior either persistently or grossly fails to meet expectations.

But “in too many cases, managers duck the issue because it’s hard, because it can damage your popularity for a while, [or] you don’t want the hassle of . . . lengthy termination procedures. . . . “  Also, he said, the problem might get deferred to a new manager in the next reorganization.

My “favorite firing” posts are designed to point out when managers need to take accountability for terminating certain employees (and when they shouldn’t).  But we should always remember that the goal is to preserve the engagement of the workforce as a whole, not to belittle or take revenge on a particular employee.

Accountability for Mistakes:  Then on May 2, 2012, Richard Haddon posted about how good leaders take accountability for their mistakes.   We’ve all made mistakes.  But leaders own up, they don’t make others pay for their mistakes.

We’ve all heard the story of how Eisenhower wrote a memo in advance of D-Day in which he said that he was responsible if the invasion was a disaster.  But when the invasion was a success, he gave the credit to the fighting troops, as he should have.  Leaders give credit; they don’t take it.

When leaders take accountability for their mistakes, Richard’s post says to

1. Apologize quickly and without excuses or weasel words.
2. Clean up the mess you made.
3. Ask for your people’s help to fix the problem.
4. Thank them when they come through for you.

We’ve all been there at some point.

When have you had to own up to a mistake? Did you follow Richard’s four steps?

Favorite Firing: The Absent Nurse in the ICU (Second in a Series)

The Ninth Circuit Court of Appeals, one of the more liberal courts in the nation, declared in Samper v. Providence St. Vincent Medical Center, that attendance is an essential job requirement for some jobs.

This case arose under the Americans with Disabilities Act  (ADA) – a law with the laudable purpose of protecting the job rights of people with disabilities and requiring employers to provide reasonable accommodations to employees with disabilities.

The Facts:  A nurse in a neonatal intensive care unit (NICU) had fibromyalgia and missed a lot of work.  When she was absent, she could not care for the premature babies in the NICU – which was the essential function of her job.

As required by the ADA, the nurse and the hospital discussed accommodation of her inability to comply with the hospital’s attendance policy because of her disability.  The nurse wanted to be given an unspecified number of unplanned absences from her job, and to opt out of complying with the attendance policy at all.

The hospital had few nurses who could back up the employee in question, and said they could not accommodate her request.  The hospital worked with her through several years of poor attendance, and even permitted her to re-schedule her shifts on short notice. 

Finally, however, when even this flexible scheduling did not work to improve the nurse’s attendance, the hospital concluded they needed to move her to another department.

She refused the job transfer, continued to be absent, and even missed the meeting with her supervisor to discuss her attendance. Then she was fired for poor attendance, and she sued the hospital.

The Moral:  Even the liberal Ninth Circuit determined that attendance was an essential job requirement for a nurse.  As the Court said,

“Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions.”

The Ninth Circuit agreed with its fellow courts.

In essence, the court held that you can’t take care of babies without being where the babies are:

“This at-risk patient population cries out for constant vigilance, team coordination and continuity.”

Good to know.  Employers do not need to “gut” their reasonable attendance policies, according to the Ninth Circuit.

But employers should keep in mind that this case does not provide leeway for employers to always  fire employees for poor attendance.  Some jobs can be done from home, or the scheduling of work time could be more flexible than a nurse’s shift.  A reasonable accommodation in these cases might well require that an employer not follow its attendance policy.

The health care sector is a growing part of the U.S. economy, and aging baby boomers will need more personal services in the years ahead.  These caregiving roles will always require attendance as an essential function of the job. 

By contrast, more and more jobs that are done today in offices will be able to be done from home as technology develops.  Attendance during particular hours will become less important in these jobs.  Even jobs requiring teamwork or customer service may be able to be accomplished through virtual contact, using social media, Skype, or other means of long-distance interaction.

Which of these competing views of the workplace will grow faster? An interesting question for the demographers. Are there any opinions among my readers?

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I’d like to occasionally post about employee terminations that illustrate the state of the modern workplace.  As I wrote in the first “favorite firing” post, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.

Favorite Firings – First in a Series

Mitt Romney has taken a lot of heat in the last several weeks for saying he likes to fire people.  Some of his Republican primary opponents misinterpreted what he said, but Romney’s intent was clear:  He wants to be able to fire his health insurance company, if he isn’t happy with its service, just as he would fire any service-provider.

I don’t want to give the impression that firing is fun, any more than Romney did. Terminating someone’s employment is one of the most difficult tasks of management, as any good manager knows.  But sometimes firing an employee is the right action for the company, the department, and often even for the employee.

I’d like this to be the first in a series of occasional posts on “favorite firings” – stories about employee terminations that make you shake your head and wonder about the state of our workforce.

My purpose is to make you chuckle, but also to make you think.  Was termination the right thing to do in each situation?

Here is one of my “favorite firings”:

The Facts:  An employee claimed he had been injured at work, and he filed a worker’s compensation claim.  His doctor imposed lifting restrictions prohibiting him from lifting more than twenty pounds, which kept him from doing his job as a stock handler. Therefore, he was off work on disability leave.

Some of the man’s co-workers noticed his picture in the local newspaper, depicting him carrying a wild turkey – holding the dead bird out with one hand, his shotgun in the other hand, and a big grin on his face.  He had won the local turkey shoot competition, and the newspaper prominently reported the weight of his bird as thirty pounds – more than his lifting restriction. 

So, yes, this man was fired for lifting a turkey.

The Moral:  An employee’s behavior away from work can lead to serious workplace consequences.  More and more employees are disciplined, fired or refused employment because of Facebook or other social media postings and pictures, or other publication of their non-work actions.

It is unlawful for an employer to fire someone for filing a worker’s compensation claim.  But an employer can take action if the employee lies about his restrictions.

If you don’t want your employer to find out about something you’re doing, don’t let it be publicized anywhere.  Even if you won the turkey shoot.

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If you have any ideas for stories of “favorite firings” to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.