Almost nothing strikes fear in the hearts of mangers more than the prospect of having to fire someone. In fact, every time we conduct a poll to find out what topics our Blawg visitors want us to cover in greater depth, the #1 answer is always, always, always terminations.

Ask and you will receive. Click here to access the world’s finest suite of termination tools. You’ll find:

• Top 10 Termination Mistakes
• Termination Red Flags
• Termination Green Flags
• Pre-termination Planning Checklist
• Termination Test
• Termination Review Checklist
• Termination Meeting Guide

No one likes to fire anyone. But if you follow these tools, you’ll reduce your legal risk, ensure that you’re making the right decision and — most importantly — treat your employees with the dignity and respect they deserve.

Previously here on the Blawg, we reported on a case in which a black employee was awarded $120,000 after he proved that his firing for setting off a firecracker in the workplace was discriminatory.  Yesterday, the U.S. Court of Appeals for the Sixth Circuit upheld the award.

The case offers several valuable lessons for employers.  Here are the highlights.

The Facts

Ronald Madden was fired in 2006 by the Chattanooga Public Works Department for setting off a firecracker at work.  Company representatives testified that they were unaware of any similar incidents at the time of Madden’s firing and that they would have taken the same action against any other employee who had done the same thing.

However, Madden and several of his co-workers provided evidence that white employees had set off firecrackers at least twice in the past without incurring any discipline.  In one incident, the employee — who had the same supervisor as Madden — set off firecrackers at work less than a year before Madden’s firing.  Unlike Madden, the only response to that employee’s conduct was an informal admonition that he should “knock off the horseplay.”  There was also evidence that the supervisor himself had set off firecrackers at work and was never disciplined.

In a separate incident, a white employee threw a firecracker into a city truck carrying black employees, causing some of the employees to jump out of the truck while it was still moving.  Again, no discipline was issued and the situation was treated as “humorous and not one warranting discipline.”

The Trial

Despite the employer’s protestations that it was unaware of the prior incidents, the district court found that setting off firecrackers at work was “not uncommon” and that “there was no effort to conceal their use.”  Based on the employer’s disparate treatment of Madden and its willful ignorance of prior incidents, the court found the city liable for race discrimination under Title VII and awarded Madden $52,765 in front pay, $36,935 in back pay and $30,300 for emotional distress.

The Appeal

The employer appealed on the basis that the evidence supported a finding that Madden’s firing was indeed nondiscriminatory.  Among other things, the city argued that all employees were treated equally and that Madden’s conduct posed a greater safety risk than the conduct of the non-terminated employees.  In addition, the city argued that Madden failed to mitigate his damages by rejecting its “unconditional” offer of reinstatement.

The appeals court rejected the employer’s arguments.  First, it found that the reasons offered for Madden’s firing were insufficient to “motivate” the termination.  It pointed to the wealth of evidence that “white employees were not fired — or disciplined whatsoever — despite engaging in substantially identical conduct.” 

As for the “greater safety risk” argument, the court found “substantial evidence that the other incidents involved comparable or even more serious misconduct.”  It pointed particularly to the incident in which the white employee threw a firecracker into the moving vehicle carrying black employees.

The court also found that “discriminatory animus” motivated the white supervisor to turn in Madden but not white employees who engaged in similar conduct.  “By relying on this discriminatory information flow, the ultimate decisionmakers ‘acted as the conduit of . . . prejudice,’” the court stated.

Last, the court rejected the “failure to mitigate” argument.  The court found that the city’s offer of reinstatement was not truly “unconditional” because it required Madden to dismiss his discrimination claims.

The Lessons

This case graphically illustrates what can happen if an employer applies its discipline policies inconsistently.  Prior to any termination, it’s absolutely critical to conduct a good-faith investigation to ensure that (1) you have all the relevant facts, (2) the penalty fits the “crime” and (3) the decision is consistent with past practice.  Witnesses should be carefully examined to ferret out any potentially discriminatory motives.  It’s never a good idea to go to trial relying on the testimony of a potentially prejudiced witness.

Also, employers should think twice about offering reinstatement conditioned on dropping claims.  Such offers may be found “conditional” and thus insufficient to cut off the employee’s damages.

Tools and Tips

We’re here to help.  For our handy investigation checklist, click here.  For our termination tools, click here.

Proving that anyone can sue for anything (and that justice occasionally gets done), yesterday a federal court refused to overturn the license termination of a pilot who admitted smoking crack cocaine.

The Facts

According to court documents . . .

• Pilot Charles Gabbard admittedly smoked crack cocaine sometime between 5:00 p.m. and 7:00 p.m. on February 15, 2007.
• On February 16, Gabbard submitted to a random drug test. 
• On February 17, he piloted a chartered jet.
• On February 21, Gabbard’s test results came back, showing a cocaine metabolite level seven times higher than the regulatory limit.
• Cocaine takes 24-48 hours to clear the system, according to the drug test administrator.

In April 2007, the Federal Aviation Agency (FAA) terminated Gabbard’s pilot’s license based on the positive drug test and the agency’s conclusion that he had piloted the February 17 flight “while having a prohibited drug, cocaine in [his] system.”

After an evidentiary hearing, an Administrative Law Judge upheld the FAA’s decision.  The National Transportation Safety Board also affirmed the decision.

Despite all the above, Gabbard filed a lawsuit, claiming there was inadequate evidence for his termination.

The Court’s Decision

Not too surprisingly, the law doesn’t allow pilots to fly the friendly skies while on drugs.  What is surprising is that Gabbard was able to get his case all the way to the second highest federal court in the land.

Basically, Gabbard’s defense appeared to be:  “Hey, you can’t terminate me.  Sure, I smoked crack and massively failed a drug test but you can’t prove with 100% certainty that I was coked up while I was actually flying that big plane in the sky with lots of people on it.”

After examining all the evidence, the court concluded that a “reasonable mind” could determine that Gabbard flew the plane with coke in his system.  It pointed to the ALJ’s conclusion that Gabbard lacked credibility and that his admitted crack smoking may have taken place closer to takeoff.  Even without that, however, the uncontested evidence showed that Gabbard piloted the jet (at most) 42 to 44 hours after smoking crack — within the 24-48 hour window it takes for coke to clear the system.

Gabbard tried a few other creative arguments, including that (1) he inadvertently smoked a cigarette that — unbeknownst to him — was laced with crack, (2)  the coke may have gotten into his system due to plastic surgery or (3) perhaps he inhaled crack smoke that just happened to waft by his head at some point.

The court rejected each of those arguments, finding that regardless of how the coke got into his system, Gabbard immediately knew he was affected.  Rather than inform his employer about the “accidental” crack ingestion, he instead jumped behind the controls of the plane and took off.

Gabbard’s final argument was that his lawyer was so bad that the decision below should be thrown out.  The court rejected that argument as well, noting that there is no constitutional right to effective counsel in a civil case.

Click here to read the entire decision.

In yesterday’s How to Fire Without Getting Fired webinar, we asked our 1,700 or so participants the following question:

What is your single biggest fear when it comes to employee terminations?

Their answer:  Basically, everything.

Specific fears mentioned included “getting sued” (20%), “lack of good documentation” (16%), “potential retaliation/violence” (7%), “saying something wrong” (7%), “not having all the facts” (5%) and “feeling guilty” (2%).

But the #1 most popular answer was “all of the above” (40%).  “None of the above” was selected by a grand total of 0%.

Just for a little context, this was an audience experienced at handling terminations.  When we asked how many terminations they had handled, the #1 answer was “more than I can possibly count” (31%).  More than 50% of our audience reported handling at least 10 terminations.  Only 7% said they had never fired anyone.

To help you overcome your termination fears, we prepared a suite of handy tools to guide every aspect of the termination process.  They can be accessed here or by clicking on  “Termination Tools” to the left under “Tools & Tips.”

The answer is a resounding “yes,” according to the vast majority of managers.

According to a new survey by TheLadders.com, 98.7% of bosses believe in office etiquette and 69.7% would fire an employee for bad workplace manners.  82.4% said they have issued an official warning and 6% have actually fired someone for breaching office etiquette.

Among bosses who have fired an employee for bad manners, the top five offenses were:

1. Foul language (38.4%)
2. Excessive gossip (36.5%)
3. Drinking on the job (35.2%)
4. Leaving the office without telling anyone (33.6%)
5. Excessive personal calls (28.0%)

So, what do employees think is the world’s worst workplace faux pas?  Believe it or not, the #1 answer was stealing someone else’s food from the fridge.  Finishing second was bad hygiene.  Others that made the list included cooking stinky food in the office microwave, swearing and sending messages on a BlackBerry during a meeting.

Practical Application

Based on the above, we have scientifically determined that the absolute most optimal way to get fired would be to (a) steal someone’s lunch, (b) cook it in the office microwave, (c) swear, gossip, send messages on your BlackBerry and make personal calls while it’s cooking, (d) have a beer with your meal, (e) don’t brush and floss afterward and then (f) immediately leave the office without telling anyone.

A new case out of the Big Apple highlights the risks of firing an employee for off-duty conduct.

Jason Colodne, former president of Patriarch Partners LLP, was fired after appearing on the TV show “Real Housewives of New York City.”  He is the boyfriend of Bethenny Frankel, the only unmarried “housewife” on the show.

Patriarch’s management reportedly was “horrified” when it found out that Colodne appeared on the show.  “I’m suggesting that one of the reasons for his absences in the office was because he was filming a tawdry show,” said the firm’s lawyer.  “They found out he was on the show when promos ran.  He’s on a show and never mentioned it.  Any other company would have fired him on the spot.  He also was not performing or bringing in new deal flow.”

Colodne is suing the company for $55 million, alleging that he was fired without cause.  “His appearance as an incidental on the show does not violate any of the terms of his employment contract, and Patriarch is using that appearance in an attempt to avoid paying him tens of millions of dollars in hard-earned compensation,” his attorney said.  Apparently, the focal point of Colodne’s appearance was promoting a charitable organization that raises money for neurofibermatosis, a condition from which his sister suffers.

Potentially complicating things for the company is the reputation of Colodne’s former boss and head of Patriarch, Lynn Tilton, who allegedly once said to the New York Observer:  “I always show cleavage.”

How Should Employers Approach Off-duty/Off-site Conduct?

Employers typically have a tough time with this issue.  I once took an online sexual harassment training course in which a question was asked that went something like:  “Can off-site or off-duty conduct constitute sex harassment?”  I kept flunking the test because I refused to answer anything but ”yes.”  Apparently, the test designers were attempting to send a message to employees that it was perfectly OK to, for example, run around naked and hug your co-workers as long as it’s 5:01 and you’re five feet off company property.

Like all employment law issues, the goal should be fairness based on all the facts and circumstances.  Key considerations include:

• How severe and pervasive was the conduct?
• Did the conduct negatively impact the company’s reputation?
• Did the conduct negatively impact the employee’s job performance or the job performance of others?
• Did the conduct violate any of the employer’s policies?
• Did the conduct violate any term of the employee’s employment agreement (e.g., a no-moonlighting provision)?

The employer should gather all the facts and make a decision based on the foregoing, always asking, “What’s the right thing to do?”

What Should Employees Do?

In the case of a public appearance, media opportunity, etc., it’s always a good idea to get your employer’s permission first.  Check out your company’s policies and anything that might be relevant in your employment agreement.  And never never never never lie to your employer about where you’re going or why.

If in doubt, follow the ”Mom Test”:  Would you want your mother to read about what you’re doing on the front page of the paper?  If the answer to that question is “no,” then don’t do it.

So, Who’s Going to Win This Case?

Like all good lawyers, my answer is:  “it depends.”

In all likelihood, it will come down to what Colodne’s contract says.  If it contains a “no-moonlighting” clause — particularly one requiring him to obtain company permission prior to an appearance of this nature — he could be in trouble.  In addition, if he in any way misrepresented his activities or whereabouts to the company, that could kill his case. 

Another key issue will be whether the company suffered any real damage due to Colodne’s appearance.  The fact that it appears to have been mostly a do-good charity kind of thing could be a big boost to his case, particularly if his lawyer is able to contrast it against the public conduct of Colodne’s supposedly racy former boss.

Stay tuned to see how this plays out.

As if there weren’t enough prostitute-themed news stories today . . .

An Iowa judge rejected an employee’s claim that he shouldn’t have been fired for repeatedly requesting a prostitute.

Neil Jorgensen of Kalona, Iowa was employed by the Riverside Casino and Golf Resort.  In honor of his one-year anniversary with the company, the casino gave him a gift certificate for a free night’s stay at the hotel.

After dining and drinking at the casino’s restaurant, Jorgensen retired to his hotel room around midnight.  He then called the hotel manager and asked for assistance in hiring a prostitute.  As Jorgensen explained during his hearing for unemployment benefits, “The advertisement is that it’s just like Las Vegas, so I thought I was in Las Vegas.”

When the hotel manager declined to help him, Jorgensen called a neighboring resort and repeated his request.  Eventually, hotel employees were dispatched to Jorgensen’s room to ask him to stop inquiring about prostitutes.  When they arrived, Jorgensen answered the door in the nude, according to testimony offered by the casino’s HR director.  Jorgensen was terminated the next day.

Jorgensen claimed that his actions didn’t harm the casino’s reputation and that the restaurant was at fault for serving him too much liquor.  “I was absolutely plowed,” he said.

The judge wasn’t persuaded and denied benefits.

A few weeks ago, we reported here on the infamous Dilbert case, in which a judge ruled in favor of an employee who was fired for posting a cartoon that likened managers to “drunken lemurs.” 

We conducted a poll and found that 77% of you agreed with the judge’s decision, 16% disagreed and 7% responded:  “What’s a lemur?”

In a case of art imitating life imitating art, this week’s Dilbert strips have featured an in-depth legal analysis of the case and its potential implications.  (To view the actual strips, click on the Dilbert icon on the bottom left of the Blawg.) 

Yesterday’s strip featured the following exchange:

Boss:  Our surveillance cameras caught you posting this anti-management comic on the wall.  The comic compares managers to drunken lemurs.  Do you think drunken lemurs are like managers.

Wally:  No.  Some lemurs can hold their liquor.

Today’s strip took it a step further:

Catbert:  Wally, I have to fire you for posting a comic comparing managers to drunken lemurs.  You won’t be eligible for unemployment benefits unless you can prove you were stupid as opposed to malicious.  Can you prove you’re stupid?

Wally:  Is there another explanation for working here?

What will happen next?  Will the company fire Wally?  Will he sue?  Will he get unemployment benefits?  Will a group of sober lemurs file a class action?

Stay tuned for more.

Completely Irrelevant Bonus Information.  For the 7% of you who didn’t know what a lemur is, Webster’s defines it as: 

any of various arboreal chiefly nocturnal prosimian primates (superfamily Lemuroidea) that were formerly widespread but are now largely confined to Madagascar and that usually have a longish muzzle, large eyes, very soft woolly fur, and a long furry tail.

And, apparently, they can hold their liquor.  Click here for a picture.

Each week, we post a thought-provoking question for your consideration.  Here’s our last question, along with your answers . . .

A manager named Bob shows up more than two hours late for work.  Bob is normally a responsible, quiet individual.  Today, however, he acts “obscenely happy, wearing make-up, avoiding eye contact, continuously rubbing his legs and touching everyone.”  He also does a “crazy monkey arm dance” and then “twirls and talks gibberish, flying around in the office in a hyper state.”  Then he leaves.  What do you do?

a.  Fire him for inappropriate workplace behavior (4%)
b.  Do a crazy monkey arm dance in his honor until he returns (4%)
c.  Drug test him (9%)
d.  Give him a chance to explain his behavior (74%)
e.  Call the police (9%)

The correct answer is “d”:  Give him a chance to explain his behavior.  

Sometimes the logical answer is the right answer.  When I was in private practice, I was surprised at how often I had to ask the seemingly obvious question:  “Did you give the employee a chance to explain?”  Too often, decision-makers want to jump to the conclusion (e.g., “Let’s fire him right now!) without getting all the facts.

In this particular case, the decision-maker was advised to ask that simple question.  He was glad he did.  Unbeknownst to him, “Bob” was suffering from cancer and had just started a new medication.  Unfortunately, the medication had a side effect that resulted in the out-of-character behavior.  The story has a happy ending:  the medication was adjusted and Bob quickly returned to his “responsible, quiet” self.

Our viewers are now batting a healthy .611 (11 right, 7 wrong) on our weekly questions.  The next one will be coming your way soon.

Thanks for your participation!

A judge has ruled in favor of an employee who was fired after posting a Dilbert cartoon that poked fun at managers.

The Catfish Bend Casino in Burlington, Iowa fired David Steward for posting the cartoon on an office bulletin board shortly after management announced that the casino would be closing and that 170 employees would be laid off.

“Basically,” HR Director Steve Morley testified, “he was accusing the decision-makers of being drunken lemurs.”  “We consider that misconduct when you insult your employer.”

The cartoon depicted the following conversation between Dilbert and another character:

“Why does it seem as if most of the decisions in my workplace are made by drunken lemurs?”

“Decisions are made by people who have time, not people who have talent.”

“Why are talented people so busy?”

“They’re fixing the problems made by people who have time.”

Steward testified that he posted the cartoon because he “thought maybe it would cheer some people up.”  However, it elicited the opposite reaction from management and he was fired three days later for “not being a team player.”

Administrative Law Judge Lynette Donner ruled in favor of Steward, calling his actions a “good-faith error in judgment” rather than intentional misconduct.

Even Dilbert creator Scott Adams weighed in on the decision.  “Most ‘Dilbert’ comics dont’ come right out and call management a bunch of drunken lemurs,” Adams said.  “So I can see how this one might have been a tad over the line.”