Employment and Labor Insider - Legalese Is Not Spoken Here

Employers, are you expecting too much from your "probationary period"?

Most employers have a 90-day "probationary period," and if you believe what's in their policies, they can fire an employee for any reason during that period -- no ifs, ands, or buts. (And if you believe that, I know a Nigerian prince who needs to hold your money for a little while so he can return it to you a thousandfold.)

My colleague Heather Bussing has already written well about how "probationary periods" can give employees the impression that they can't be terminated except for "cause" once the probationary period has ended.

In addition, the probationary period may give employers a false sense of security.

Case in point, tweeted by Vancouver labor and employment attorney Jillian Humphreys:

A hotel in Charlottestown, Prince Edward Island, was in the news recently because management fired an administrative assistant/desk clerk within one hour of her announcement that she was pregnant.

The hotel says that the former employee was not terminated because of her pregnancy, but because of pre-existing problems with her work performance and an inability to get along with her supervisor. According to the hotel, the decision to terminate the employee had actually been made a couple of weeks before she was terminated (and, more importantly, before the hotel had any reason to believe that she was pregnant).

Normally, this is a good defense.

But not always. Like, not when you don't have any proof apart from "scout's honor" that the decision had been made earlier.

In this case, unfortunately for the hotel, the employee was in her "probationary period," and the employer didn't think it had to document any of her issues or even meet with her to let her know that she wasn't meeting their standards.

For some holiday cheer (well, "cheer" may be an overstatement, but for some excellent holiday-themed blog posts), please visit the December Employment Law Blog Carnival:Holiday Edition, hosted by Ari Rosenstein of CPEHR. The carnival includes my post, "10 reasons for employers to be jolly about the ADA." Ari, thank you for including us, and you did a great job!

So, it will be their word against hers that the hotel made the decision to terminate before she announced her pregnancy. And, as the employer itself admits, the timing of the termination was a bit     . . . problematic.

I tweeted to Jillian that this employer would be in big trouble in the United States, and she said that same was true in Canada.

Occasionally, I will talk to employers who, like this hotel, think that the probationary period means they can do whatever they want, which is not correct. I've seen employers terminate employees during their probationary periods for things like

*Protected concerted activity ("For cryin' out loud, she hadn't been here a month, and she was already bi**hing about her overtime!")

*ADA disabilities ("Oh, sure, we accommodate disabled employees, but if they have a non-work-related injury during their probationary period, we terminate them and let them reapply when they're well.")

Oy.

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Employers should keep in mind the following about probationary periods:

* Even cowgirls get the blues, and even probationary employees have rights under the anti-discrimination laws. If an employee is terminated for a reason that violates the law, the fact that he or she is "probationary" is not going to help you, the employer, one whit.

* As Heather has pointed out, having a probationary period may cause your employees to believe that they are no longer "at-will" once the probationary period ends. (Not that an employee is ever "at-will" anyway. See comment about Nigerian prince, above.) An employee misunderstanding may not have legal consequences depending on where you are, but in a state like California, it probably does.

 So, what can an employer do? If anything?

*It's usually fine for benefits not to kick in until the "probationary" period is completed, and you can even say that in your handbook if you have one.

*It's fine to have a lower (easier) standard for termination of a probationary employee. However, the lower standards ought to be spelled out and should be applied consistently within the "probationary" population of your work force. And the lower standard cannot violate a law, as in the ADA example above. F'rinstance:

THIS: "Our attendance policy for regular employees is 10 no-fault points and you're out. A probationary employee who accumulates 3 attendance points will be terminated."*

*Even here, you may have to make exceptions for absences associated with "disabilities" within the meaning of the ADA.

NOT THIS: "We do not make reasonable accommodations for probationary employees."

OR: "Only regular employees may make complaints of workplace harassment or unlawful activity in the workplace."

OR: "Only regular employees may complain about their terms and conditions of employment."

Of course, if you are going to terminate a probationary employee under your "easy" (but legal) termination standard, you'll also need to have some evidence that the employee failed to meet the "easier" standard, such as attendance records, or documented warnings, or something besides your word. Yes, this is true even if the employee is "probationary."

Our PEI employer is learning that lesson the hard way.

As they said at Bunker Hill, "Don't fire until you see the whites of their eyes!"

Last week, I wrote about early motions to dismiss employment lawsuits under Rule 12(b)(6) and questioned whether they were always the best strategy for the employer. Most of last week's post simply described the differences between a motion to dismiss, a motion for summary judgment, and a trial, as background for the benefit of our readers who are not lawyers.

As noted in a comment by Philip Miles of Lawffice Space (great blog, by the way, and well worth a visit), there is no question that a judicious motion to dismiss an employment lawsuit may be a good idea. If it works, of course, it is by far the least expensive option because it allows you to end the lawsuit at the earliest possible point. (Big "if," unfortunately, but we can dream, can't we?)

I'd give a motion to dismiss serious consideration in these circumstances:

*As Philip points out, even if you can't get the entire lawsuit thrown out, you can narrow the case down to the "real" issues by getting the "trash" claims dismissed. Plaintiffs often throw the kitchen sink at the defendant, and a "surgical" motion to dismiss will allow everyone to focus on the part of the lawsuit that is serious.

*Sometimes it will be crystal clear from the allegations of the complaint that the claim is baloney ("I was fired because I'm a woman. I got caught stealing, but males who didn't steal were not terminated") or is outside the statute of limitations ("Twenty years ago, the company fired me because of my race"). Why don't we get lawsuits like this more often?

*Sometimes it's a good strategy for pragmatic reasons -- maybe your case has some problems (for example, hostile witnesses, lack of documentation, or poor handling of the situation that led to the lawsuit), and it's worth trying an early motion to dismiss to avoid all that.

*Or maybe you just want the plaintiff's lawyer to know that your company isn't an easy mark for lawsuits and that she'll have to work for her money. You need to be careful about this motive, though -- you may be opening yourself up to sanctions if you don't have a strong legal ground for the motion.

In short, I'm not 100% opposed to a motion to dismiss, and I have been known to file them occasionally myself. That having been said, I think defense lawyers frequently overuse them, and I'd like to give you five reasons why an early motion to dismiss is not always in your best interests as an employer.

Reason No. 1 - You may "make bad law." A real-life example will illustrate what I mean. My state of North Carolina, like many other states, recognizes a claim for "public policy" wrongful discharge but takes a fairly limited view of what a protected "public policy" is. Among other reasons, you can't fire an employee for refusing to commit perjury, or for a discriminatory/retaliatory reason, or for filing a workers' compensation claim, or a truck driver for refusing to falsify his driving logs.

In a real lawsuit decided last fall, a landscape architect claimed that his ex-employer fired him because he made complaints about the employer's lack of compliance with state laws requiring that projects be certified by a real landscape architect. The architect/plaintiff claimed that his ex-employer's refusal to comply created public safety issues, as well as cost overruns and delays on multiple projects, and he gave specifics. The employer filed a motion to dismiss on the ground that North Carolina didn't recognize a "public policy" discharge claim on these grounds.

Well, guess what? It does now. A federal district court found that our state courts would indeed recognize such a claim. (Link is to the magistrate's recommendation, but the judge adopted the recommendation.) Of course, I have no idea what evidence the employer would have been able to present in its own behalf because a motion to dismiss is filed before the development of evidence. Maybe this motion to dismiss was the best in a set of bad options. But there is also no question that we now have a new cause of action for wrongful discharge that we didn't used to have . . . all because of this motion to dismiss.

Reason No. 2 - Your motion may "coach" the plaintiff about how to say it better next time. Let's say the plaintiff, who is African-American, alleges, "The company discriminated against me because of my color and national origin in violation of Title VII of the Civil Rights Act of 1964." Let's say there is no factual allegation that her "color" played any role in her termination, and because she's American, she doesn't have a national origin claim. Should you file a motion to dismiss? I wouldn't, because your motion will teach her (or her attorney) that she needs to use the buzzword "race" instead of "color" or "national origin" in the future.

Reason No. 3 - Even if your motion is granted, the judge will probably give the plaintiff "leave to amend." Sad but true. As I said last week, if you wait and win on a motion for summary judgment, the case is over subject only to the plaintiff's right of appeal. But if you win on a motion to dismiss, chances are very good that the judge will simply let the plaintiff rewrite his complaint and file it again. (Also, your motion will have taught him how to make it "stick" this time. See Reason No. 2.)

Reason No. 4 - An overly aggressive motion to dismiss will tick off the judge. You certainly don't want the judge to be mad at you, and in my experience, judges can't stand a bully. They especially don't like to see big law firms hassling small practitioners, or -- heaven forbid -- plaintiffs who are representing themselves. If you have a really well-founded motion to dismiss, go for it, but if it's borderline and the other side is a "small lawyer" or pro se plaintiff, I'd back off. Instead, be nice, and wait for summary judgment. 

Reason No. 5 - It's often an exercise in futility and a waste of money. (See all of the above.) PS - Judges don't like wasting time on unnecessary motions any more than they like bullies.

Here are some specific instances in which I would not recommend filing an early motion to dismiss an employment lawsuit:

*Where the plaintiff did a poor job articulating her allegations, but everyone knows what she meant and she has a valid claim.

*Where the plaintiff is pro se. Period. (OK, maybe if the lawsuit is totally incoherent, but otherwise . . .) Dude, be nice. Let him have his day in court.

*Where you have a "home run" case, but you need a little bit of evidence to get wood on the ball. If you need evidence, that's summary judgment, not a motion to dismiss.

*Where you can get one or two claims dismissed, but many more claims will have to remain in the lawsuit. This is a matter of economics -- if the valid claims significantly outnumber the "trash" claims, it's probably going to be easier and cheaper for the client to dispose of everything on summary judgment.

*Where you only "probably" have a statute of limitations defense. For example, the federal anti-discrimination laws require that you file suit no later than 90 days after receipt of the EEOC's dismissal of the charge. Let's say the lawsuit is filed on day 93 after the date of dismissal. Don't waste your time with a motion to dismiss the federal claims on grounds of untimeliness - the plaintiff will simply respond with the claim that she didn't receive the notice until day 95, and you won't be able to disprove it. The time runs from date of receipt, not date of issuance. (See also Reason No. 2, above, about educating your opponent.)

Wish I'd thought of that - On a completely unrelated note, blogger Jon Hyman had a fantastic post this week about an Employer's Bill of Rights. Please read it - you won't be sorry!

It's not just London that is suffering from unrest these days -- there is reason to believe that American workplaces are far from heaven, too, even for those who are still fortunate enough to be employed.

The Wall Street Journal recently reported that approximately 75 percent of departing employees would not recommend their former employers to others looking for a job, almost a 100 percent increase over the "disgruntlement index" from 2008.

Meanwhile, the Equal Employment Opportunity Commission received more than 99 thousand charges in 2010, an increase of approximately 6,000 since the prior year. No telling what the numbers will be for 2011. My guess is "atrocious."

Want to guarantee you'll be sued, even if you're 100 percent in compliance with the law? Here are five employer "worst practices":

1. "They can have my unemployment when they pry it out of my cold, dead hand." Be sure to fight every unemployment claim filed by every terminated employee. OK, maybe you can make an exception for those who are caught up in a reduction in force, but that's it. It's good to make your ex-employee feel like he's backed into a corner. And if the fight is worth fighting at all, it should be a fight to the death. If you lose the unemployment case at the hearing stage, appeal it as far as you can go -- that will help your ex-employee learn to do better at his next job.

2. The EEOC is offering to mediate? So what? Don't give those bureaucrats the satisfaction! They'll just be pushing their agenda and letting this undeserving ex-employee tell you to your face why her feelings are hurt and take what little money she can weasel out of you. Sure, occasionally she'll settle for no money at all, and the charge will be dismissed without even a position statement, and you can get a full release of claims in exchange, but you're 100 percent in the right, so you don't need it. You're going to win! It's a matter of principle -- you'd rather pay your lawyers to defend you in court for the next two or three years than pay a nickel to this bimbo. 

3. If an employee can't perform the essential functions of the job* because of medical problems, then tough darts. The ADA says they're out of luck. Heck, even the ADAAA does. So what if the Obama EEOC has made disability discrimination enforcement a top priority? You're on rock-solid ground. Don't lift a finger to help your sick or injured employee qualify for short-term or long-term disability, or for Social Security disability -- that's his problem. It's not under your control, anyway.

*With or without a reasonable accommodation, of course. If the employee can perform the essential functions with a reasonable accommodation, then that would have to be offered.

4. Never let 'em "quit." If you're firing an employee, be sure that the record clearly reflects that she was fired. In disgrace, preferably. Whatever you do, don't offer her an opportunity to save face and "resign." A forced resignation won't be worth a darn in court anyway because they'll treat it as a "constructive discharge." Better to just let the chips fall where they may. If that means she'll have to spend at least six more months looking for another job (and turning to the EEOC in desperation before her charge-filing period runs out), so be it. What doesn't kill her will make her stronger on her next job.

5. Whatever you do, don't offer severance unless it's a RIF. Sure, you normally get a full release of claims when you offer severance, but why pay if you don't have to? You haven't done anything wrong -- your ex-employee has. Save your money. You can use it to pay your lawyers after he sues you. (You may need a little more.)

Finally, don't forget to let your boss know what you have done. He or she will admire your principles and will think the risk of litigation and legal fees were, like, totally worth it. I bet you'll get a promotion. 

"If you tell the truth, you don't have to remember anything." Mark Twain

"No man has a good enough memory to be a successful liar." Abraham Lincoln

"A half truth is a whole lie." Yiddish Proverb

"Those who think it is permissible to tell white lies soon grow color-blind." Austin O'Malley

Q. "How do you know when a lawyer is lying?" A. "His lips are moving." Old lawyer joke. Har-de-har-har, Alice.

All of us have been guilty of fudging on the truth, if not out-and-out lying, from time to time. But the fact that we've done it doesn't make it right. There are many reasons that honesty is the best policy, and with a hat tip to my colleague Bill McMahon for suggesting this topic, I'd like to talk about why it is important in the employment context.

First, the obvious: Perjury is a crime, and so is obstruction of justice. If you lie under oath, or in connection with a government investigation, or destroy or falsify evidence, you have committed a crime, and you could go to jail. If that's not a deterrent to lying, then I don't know what is.

But because none of you are perjurers or obstructors (obstructers?), I'll focus on the "little" lies that we are more likely to tell, and how they can come back to bite us as employers.

The truth, a fragment of the truth, and nothing but a fragment of the truth. The company is having a rough time in a bad economy, and a rumor begins that there will be a reduction in force next Friday. You don't want to have to say anything about the RIF until the day that it will take place, but you want to put an end to the gossip. So you call an employee meeting and say, "There is no truth whatsoever to the rumor that we are having a reduction in force next Friday." Technically, you have told the truth because the RIF is actually scheduled for the following Monday. Shame, shame, shame! Even though your statement was true and even though you may have bought yourself a weekend of peace, you'd better enjoy that weekend while you can. Come Monday, your credibility will be ruined, not only with the employees who will be let go, but also with those who stay.

Or, maybe you finally managed to terminate an employee (we'll call him "Joe") who has been a thorn in your side for many reasons, no one of which is bad enough in itself for termination: mediocre attendance, lackluster performance, annoying personality, and the last straw was suspected misconduct (let's say embezzlement). In telling Joe the reason for the termination, you're afraid to get into that suspected embezzlement issue, and the lackluster performance and "personality" are a little squishy, too. So you tell him that he's being terminated for attendance, and that's what you tell the folks at your unemployment agency . . . in writing and under penalty of perjury, of course.

Joe then files an EEOC charge, saying that you must have discriminated against him because he didn't have enough attendance points under your policy to warrant termination. You tell the EEOC, "Yeah, but he also had lackluster performance, an annoying personality, and we had reason to believe he was ripping off the company!" The EEOC says, "Oh, really? Then why didn't you tell Joe or the unemployment commission about those other grounds?" and next thing you know you're sitting in a conciliation meeting deciding whether it's worth $300,000 and 18 months of reporting to get Joe the Thorn out of your side once and for all.

It is legal to terminate an employee for being "substandard" in multiple areas, and it's legal to terminate based on reasonable suspicion of misconduct. So, if that's really the reason you're getting rid of Joe, tell him that, and tell the unemployment people that, too.  

Deliberately mischaracterizing the issue. This is one that, I'm sorry to say, our President has used, but he's not the only one. An employee complains to you about a legitimate, substantive issue that -- for whatever reason, you aren't able to fix. Rather than getting bogged down in a discussion about something you can't change anyway, you "admit" to a "communication problem." Sometimes communication is a problem, but if it's not and the employee has a substantive grievance, it's much better to acknowledge that,  provide a brief explanation as to why it can't be resolved, and offer to do what you can.

The "non-apology" apology. The Subversive Copy Editor has a satirical list of "non-apologies" that is as funny as it is sad (because so true). My personal favorite is, "Ah, I see now. Thanks for explaining. No worries!"

When you've done wrong, failure to admit it is an honesty issue. "Mistakes were made" isn't really a lie, but it's not as honest as it could be. "I was wrong, and I'm sorry," sounds so much better, doesn't it?

Why should an employer care about this? Because plaintiffs' lawyers, the Equal Employment Opportunity Commission, and any agency or court will tell you that many of the charges and lawsuits filed against employers have no legal merit but were filed because the employee, with some justification, believed that he or she had been "done wrong" by the employer. Even though the employers eventually win these cases, they have to go through the expense and hassle of retaining counsel, drafting and submitting position statements, attending mediations, and defending themselves in court.

If you don't believe that a sincere and honest apology will help, think about the way you feel when a stranger shoves you on the street. If the stranger says, "Get outta the way, buddy," or says nothing, you'll probably be stewing for at least 15 minutes until you get distracted by something else. But if the stranger smiles apologetically and says, "Excuse me," you will be over it immediately. That's the way it works in employment litigation, too. Erich Segal was wrong: Love means having to say you're sorry . . . a LOT.

Of course, the apology should be sincere to be effective. If you are really sorry, your actions will support your words. If you're not sorry, then don't apologize because your insincerity will show. Also, the classic non-apologies "I'm sorry YOU were offended" or "I'm sorry IF I was rude" aren't recommended. Instead, you might be better off trying to explain what you did and why you believe it was the right thing to do. 

Not even the white lie is safe. "No, honey, you don't look fat in that dress." "Do you really have to leave so soon?" "I'm doing just super, how are you?" We tell little lies like this all the time, and usually with the good intention of trying to avoid hurting someone's feelings. (Or, in the case of "I'm doing just super," to avoid boring them to death with our problems, which we know they don't really want to hear about.)

Similarly, it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. (As if getting fired without due warning doesn't itself hurt one's feelings!) Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.

Here are some examples of gross understatements commonly seen on performance evaluations:

"Mary is improving in her interpersonal relations." TRANSLATION: "Mary now cusses out her supervisor only once a week, whereas she used to do it twice a week."

"Generating new business continues to be a development need for Clyde." TRANSLATION: "Clyde hasn't generated a new customer in two years. If he doesn't find one by close of business Friday, he's fired."

"Linda has had challenges in adapting to technology." TRANSLATION: "Linda is still carving her memos into stone tablets."

Have you heard these before? The problem is, when it comes time to terminate Mary, or Clyde, or Linda, you have a problem because you have not clearly let them know that their performance is unacceptable. That's bad enough, but if you wind up in court, you will also have trouble convincing a judge or jury that this person was really that bad. If Mary was cussing out her boss on a regular basis, why didn't you say so? The fact that you didn't (even if it was because you wanted to "encourage" Mary to improve) is going to be used as evidence that you manufactured a reason to get rid of her and that the real reason was illegal.

Similarly, and for the same reason, don't ever say you're terminating an employee because of a "RIF" or "job elimination" when you're really not.

Admittedly, you are not going to be able to disclose everything going on at your company, and there may be times when tact is required. Here are a few suggestions for dealing with those situations honestly:

*If you're not at liberty to talk about something (such as an imminent reduction in force), say that. If that's giving too much away, you may be able to admit that the company is trying to do the best it can in the economy and leave it at that.

*If you want to pull your punches on the reason for a termination so that the employee can collect unemployment, don't lie or provide an incomplete explanation to the unemployment agency. Rather, give a truthfully vague explanation that encompasses all of the real reasons. In the case of Joe, above, you might say, "Overall loss of confidence," or "Employer dissatisfaction in multiple areas of accountability."  These reasons will allow him to collect unemployment but don't conflict with the specific reasons for Joe's termination. You should also be sure that Joe himself knows exactly why you are terminating him and knows you are purposely going to be vague so that he can get his benefits.

*If you want to say that an employee's job was "eliminated" to allow her to save face and collect unemployment, make sure you and the employee agree to that in writing. If you allowed her to "resign," be sure that she understands you'll have to tell the unemployment agency that it was a forced resignation so that she will be eligible for benefits.

*If you really think it's best to be as upbeat and positive as possible in performance evaluations, be sure you are addressing any problems somewhere else -- for example, by providing progressive written warnings. 

"Honesty is the first chapter in the book of wisdom." Thomas Jefferson

"This is an employment-at-will state, and I can fire you for a good reason, a bad reason, or no reason at all." Technically, this is true in most states, but in effect it is a lie which employers rely on at their peril.

Suzanne Lucas of The Evil HR Lady has a post about an individual (sex not specified) whose employer offered him/her a different position in the company. When the employee declined the position, his/her "voluntary resignation" was demanded. In other words, the boss had tried to get rid of this employee by way of a transfer, and when that failed, forced the employee's resignation. According to the employee, he/she had never been warned of any job-related issues.

Suzanne prefaced her recommendations by pointing out that such a termination, while unfair, was perfectly legal in an employment-at-will state.

She has correctly stated the law, and she has made some excellent recommendations for employees in this position. From the employer's standpoint, she aptly (and bluntly) notes, "I wish managers would stop being so freaking lazy and wimpy and actually talk to employees about problems." However, I'd like to go a step further and note the very real possibility of a lawsuit against an employer who terminates an employee in this manner.

Why? Because even if you live in an "employment-at-will state," you do not really live in an employment-at-will state.

First, the employment-at-will rule does not apply to terminations that are conducted for unlawful reasons. And, as we all know, the list of "unlawful" grounds for termination is ever-growing. A termination because of race, sex, national origin, religion, color, age, disability, or, now, genetic information, or retaliation for related protected activity, violates federal law and many state laws. According to the National Labor Relations Board, termination for posting a comment on Facebook calling your boss an "[expletive deleted]" is illegal.

Under some state and local laws, ancestry and sexual orientation are also unlawful considerations. In some jurisdictions, including the District of Columbia, appearance discrimination is unlawful. In some states, termination in violation of the procedures set forth in an employee handbook is unlawful. And even in states that are considered more "employer-friendly," terminated employees can usually assert claims for public policy wrongful discharge, retaliatory discharge, and negligence.

So, now you may be thinking: Well, ok, but I'm not terminating this person for any of these reasons. I'm terminating him because I just can't stand him. Doesn't that fall under employment at will?

The answer is yes and no. Yes, because that is a facially lawful reason in an employment-at-will state. But also no, because an employee who is terminated for an arbitrary or unfair reason will have a much easier time claiming -- and possibly persuading an agency, judge, or jury -- that the stated reason is false and that the employer's real reason was an illegal one (for example, "Sure, he couldn't stand me because I'm 53, and he couldn't stand anyone over the age of 50, and that's age discrimination!").

So, even in an employment-at-will state, an employer should make sure that termination decisions are fair (which would usually include specifically warning a sub-standard employee about her deficiencies and giving her an opportunity to improve), well-documented, and conducted in a manner that is consistent with the employer's policies and procedures.

PS-"Right to work" is often confused with "employment-at-will" but actually means something completely different. Right-to-work states prohibit unions and employers from requiring union membership as a condition of employment.