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When disciplining, focus on words and actions

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in Firing,Human Resources

Judges don’t expect you to put up with potentially dangerous employees. But if an employee believes he’s really being punished for something other than behavior, be careful.

Focus on the employees’ actual behavior, not subjective “feelings” you got when observing him. Otherwise, he will be able to argue that your discipline was just a pretext to get rid of him for another, illegal reason.

Recent case: Andrew, a machinist, was fired for behavioral problems. But because he has in-demand skill, he was quickly rehired. He went on to earn good reviews, albeit with low marks for not getting along with co-workers.

As time went on, Andrew revealed that he had some psychological and physical problems. He regularly took FMLA leave for arthritis. Then he asked for reasonable accommodations when he returned from one of several FMLA-covered leaves.

Eventually, Andrew was terminated after an incident involving another employee. He sued.

In court, an HR director testified that she had observed Andrew’s “demeanor” and concluded that “his eyes narrowed,” which made her concerned for co-workers’ safety. His boss said the “look” on Andrew’s face was scary. No one, however, described any threatening actions or any of Andrew’s words that could have been threatening.

Based on those subjective assessments, the court said Andrew could take his lawsuit to trial. He will be able to argue that he was really fired because he used FMLA leave and requested reasonable accommodations, and that the perception that he was a threat was just an excuse to get rid of him. (Berkowitz v. Oppenheimer Precision Products, No. 13-4917, ED PA, 2014)

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