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“Just cause” helps deter employee-discharge suits

Most collective-bargaining agreements between employers and unions state that employees may be discharged only for “just cause.” When a union employee is discharged, an arbitrator often is brought in to ask the employer a series of questions to determine just cause. A “no” answer to any of the questions suggests that just cause may be absent.
Knowing these questions in advance can help union and non-union employers avoid possible litigation involving the termination of an employee, and can help ensure a fair discharge. Here are examples of questions arbitrators typically ask:
Did the employee have advance warning of the consequences of his or her conduct?
Arbitrators usually will not uphold a discharge unless the employee was made aware that the conduct at issue could result in discharge. To establish employee awareness, employers should provide written policies that include a list of infractions and resulting disciplinary actions.
Such a policy should identify infractions that warrant disciplinary measures and infractions that warrant immediate discharge. The policy also should state that disciplinary action and discharge are not limited to the listed infractions.
Employee evaluations can be used to provide advance warning of the consequences of conduct. If an employee has performance problems, the evaluator should tell the employee and document the evaluation or discussion. The employee should be apprised of the potential for disciplinary action or discharge in the event his or her performance is not corrected or improved.
Some behavior is considered serious enough not to warrant advance notice, such as drinking alcoholic beverages on the job, theft of company property and unprovoked physical attacks. However, it is best to inform employees in advance that such conduct may lead to disciplinary action or discharge.
Was the rule violated reasonably related to the purposes of the business?
This is a fairly subjective inquiry and arbitrators generally give employers a fair amount of latitude to make rules that the employer believes are consistent with business purposes. Nevertheless, employers should review workplace rules to make sure they make sense.
Such a review of rules also may help employers comply with certain laws governing the workplace. For example, New York’s legal-activities law generally prohibits employers from taking employment actions against workers because of off-duty political and recreational activities, as well as their off-duty use of consumable products. The law is based on the common-sense premise that what an employee does on his or her own time is none of the employer’s business.
Was an investigation conducted prior to the decision to discharge, and was the employee provided an opportunity to give his or her side of the story?
An employee has the right to be informed of the offense and allowed to defend his or her behavior. This principle can be found in the decisions of many federal court judges. Failure to allow an employee the chance to tell his or her side of the story can be painted as a pretext for discrimination. In situations such as employee theft, appropriate action is to suspend the employee pending investigation, with the understanding that the final disciplinary decision will be made after the investigation.
A neutral management representative should conduct the investigation and give the employee the benefit of the doubt. The investigator should actively seek all relevant witnesses and evidence and, if possible, take statements from witnesses.
Do the facts of an employee investigation establish that the conduct at issue occurred?
Arbitrators do not require that evidence of employee misconduct be conclusive or beyond reasonable doubt. Rather, they typically require employers to prove that misconduct occurred “more likely than not.” Non-union employers have more latitude in deciding how much evidence of misconduct they need before terminating an employee.
Has the employer treated other employees in the same manner?
Arbitrators generally will not view favorably a discharge decision if other non-discharged employees engaged in conduct similar to the conduct of a terminated employee. Thus, employers should determine whether employees guilty of similar conduct in the past have been given the same discipline as is contemplated in the present situation. Employers should be prepared to explain differences in discipline for similar conduct.
Arbitrators have acknowledged that if an employer has been lax in enforcing particular rules in the past, it may legitimately decide to apply them more rigorously in the future. To avoid claims of discrimination, the employer should inform employees of its intent to enforce the relevant rule or rules more strictly in the future.
Is discharge commensurate with the seriousness of the offense and consistent with the employee’s work record?
Discharge is the capital punishment of employment. Employers always should consider seriously whether the conduct warrants such harsh and potentially devastating discipline. Lesser offenses should not merit discipline as harsh as discharge unless the employee has been found guilty of the same or other offenses a number of times in the past.
Employers should also consider the length and quality of an employee’s record. Arbitrators generally expect employers to give more slack to employees with long service and strong performance records.
If the decision to discharge is made, the employer should conduct an exit interview with the employee. The employer should provide a candid explanation of the reason for the decision. The exit interview should be documented, and a witness should be present.
Termination of employment can be a painful process for both employers and employees. To minimize the pain, employers are advised to advertise conduct procedures to all employees, and clearly indicate actions likely to lead to termination.
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle. His colleague, David Ford, assisted with this article.)

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