How would you like to work alongside Jim, who engages in the following behavior?:
- He makes a habit of telling co-workers what they are doing wrong, using a degrading tone of voice, and instigates arguments when doing so. Jim regularly uses a belligerent tone of voice with co-workers.
- When his supervisor tells him to act more professionally with co-workers, Jim tells him he would “never back down if he felt he was defending himself.”
- He sends an email to a co-worker, telling him, “You’re my bitch.”
- When Jim’s wife visits him at work, Jim inexplicably introduces his wife to his co-workers by stating, “This is my bitch.”
- He tells his boss that there better be no “nonsense” in his performance evaluation.
- After being repeatedly warned about his inappropriate communications with other employees, Jim sends an email to a co-worker, warning him “to refrain from any sarcasm towards me as you do not have the mental ability to handle any sarcasm that is returned to you.”
After this last email, Jim was terminated because of his inappropriate interactions with other employees. If that wasn’t enough, after he was terminated, Jim refused to leave the premises until the police were called. As he was being escorted out by the police, he shouted out, “You haven’t heard the last of me!”
A fairly easy employee to terminate, don’t you think? He couldn’t possibly have a viable legal claim against us, right?
Wrong.
You see, at the very time Jim was busy calling a fellow employee his “bitch,” he also was requesting FMLA leave to care for his son. And what was his supervisor’s response to Jim about his FMLA request? A one-liner:
The Company “paid for [Jim’s] insurance and thus expected him to be at work.”
That’s it. That’s all the boss said. Oh yeah, the boss also allegedly “appeared frustrated and aggravated” when Jim turned in his FMLA paperwork. Whatever that means.
One ill-advised comment. That’s all it took, since the court reviewing Jim’s FMLA claim found that this one remark (along with the “frustrated and aggravated” look, of course) was enough to allow a jury to consider whether the Company violated the law. Hefti v. Brunk Industries, Inc. (pdf)
If true, it’s quite a costly comment, as it could saddle the Company with a judgment well into the six figures between attorney’s fees and damages.
Insights for Employers
1. Mind your communications. The Company may ultimately convince a jury to find Jim as he is — a belligerent employee who deserved termination. To be clear, the Company disputes that the supervisor ever made the comment, and it will have the chance to prove its side at trial. However, alleged comments of the kind here by Jim’s direct supervisor give a reviewing court such an easy basis to allow a case to go to a jury. In any event, these are not the kind of communications an employer wants to present to a jury. Enough said.
2. Another friendly reminder: Prepare honest performance evaluations. Shortly before Jim’s termination, he received a decent performance evaluation, and in particular, he received a “4” out of “5” in workplace behavior. Huh? This smacks of a supervisor who avoided another difficult conversation with the employee. Yet, this positive score seemed to influence the court’s decision in allowing the claim to go to a jury.
3. Training Saves Money. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should include a stern warning against any stray comments of the kind above. Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.
