Category Archives: Discipline and Discharge

Quirky Question # 227, New Bells and Whistles in Minnesota Statute

Question:

We have an employee who we have been planning to terminate because of performance issues.  This employee may have realized this was coming because he recently sent an email to a number of people claiming that our company policies violate the law.  We have been aware of these possible problems before his emails were sent and already have been working on correcting them.  We suspect this employee may have sent these emails simply to shield himself from termination.  We are concerned that we may be subject to a “whistleblower” claim if we terminate this employee.  Can we still fire him despite his emails? Answer→

Quirky Question #211, Marijuana Use

Question :

One day during the lunch break, as I was heading to my car in the parking lot, I discovered two employees smoking what smelled like pot.  I approached the employees and reprimanded them for engaging in illegal activities on the job, and told them that I would have them terminated.  One of the employees, whose mother works at a plaintiff side employment firm and whom I knew suffered from chronic low back pain, said that I could not terminate them because their activities were legal.  They both brought in a “recommendation” for marijuana from a physician and left it on my desk.  When I called them in to investigate, they stated that they would have claims for disability discrimination and failure to reasonably accommodate if I disciplined or terminated them.  Is this true?  Do I have to allow my employees to use pot? Answer→

Quirky Question # 194: Firing the Abusive Manager

Question:

One of our managers is known for being very “tough.”  None of the employees he supervises has filed a complaint against him, either internally or externally, but rumors of borderline abusive behavior kept reaching our executive suite.  As a result, we investigated.  The rumors were well grounded factually – the guy was much rougher on employees than we realized.  Based on our investigation, we’d like to fire him.  But, he falls into two protected classes.  Given that fact, we are anxious about a discrimination lawsuit if we terminate his employment.  Got any advice?  What are the risks of doing nothing versus doing something? Answer→

Quirky Question # 180: Terminating Sales Reps — Traps for the Unwary

Question:

We are a national company. We sell products through a network of sales representatives. Sometimes they’re great. Sometimes they aren’t. When they aren’t, we fire them and move on.

Recently, we learned that dumping underperforming sales representatives in Minnesota may not be so easy. Can you enlighten us? Is this regulated by statute? Answer→

“Cat’s Paw Theory Endorsed by U.S. Supreme Court” — Staub v. Proctor Hospital

On March 1, 2011, the Supreme Court decided the case of Staub v. Proctor Hospital, No. 09-400.  The decision was unanimous (8-0), with Justice Scalia writing the Court’s opinion, Justice Alito writing a concurrence in which Justice Thomas joined, and Justice Kagan taking no part in the case.  The Court overturned the Seventh Circuit, holding that a reasonable jury could have determined that Proctor Hospital violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), on a “cat’s paw” theory, when Proctor’s human resources director terminated Vincent Staub based in part on recommendations of Staub’s supervisors who allegedly were motivated by hostility towards Staub’s responsibilities as a member of the Army Reserves.

(For those unfamiliar with the “cat’s paw” concept, Justice Scalia explained: “The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7).  In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.  A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.”)

Background Facts

Staub, a member of the United States Army Reserve, worked at Proctor Hospital as an angiography technician.  Staub’s immediate supervisor, Janice Mulalley, and her supervisor, Michael Korenchuk, disliked Staub’s Reserve obligations, which included training one weekend per month plus two to three weeks each year, because the obligations made scheduling difficult.  Both Mulally and Korenchuk made disparaging remarks regarding Staub’s Reserve service, and Mulally indicated to a co-worker that she wanted to “get rid of” Staub. Korenchuk was aware that Mulally was “out to get” Staub. Answer→

Quirky Question # 168 — Is Describing a C-Level Executive’s Discharge as “For Cause” Defamatory?

Question:

I saw your last question about discharging an executive for cause. We recently terminated a C-level executive for that reason.  His contract delineated four different “cause” grounds and we felt that two were implicated, although one of these ground arguably was iffy.  We’re wondering whom we can tell about this decision.  Are there any risks associated with publicizing this discharge? Answer→