Safeguarding the Decision-Making Process in Employee Actions

Kelly Ann Bird

When our clients seek legal advice concerning adverse employment actions, they almost always, whether articulated or not, present us with a challenge: “how can we run our business as we see fit, and avoid repercussion?” Thus begins our high-wire balancing act, during which we attempt to encourage and aid our clients in exercising their best business judgment while also minimizing the legal risk inherent in some performance management and termination decisions.

We are more facile in accomplishing these dual objectives when we have had the opportunity to work with our clients to take certain steps in advance of each employment decision, as opposed to when we have been advised of a decision and then asked to assess or, as happens on occasion, merely to “bless” it. As the discussion below reveals, some of these anticipatory steps are simply a matter of laying a strong foundation that will be the base for each and every decision, while others are more contemporaneous with the decision itself, such as utilizing a checklist for individual decision-making.

First, everyone who might be involved in any employment-related decisions should be aware of the policies and agreements that govern both the employment relationship and any adverse employment action. For example, in a union context, each supervisor is generally well-versed concerning the terms of the collective bargaining agreement and the constraints on discipline and terminations. However, this same level of awareness of contracts and policies does not always exist in non-union workplaces, where “employment at will” is the norm. At supervisory training sessions, at annual performance management programs, and whenever an adverse employment action is even broached, it is always helpful to remind potential decision-makers that some employees may have written employment agreements, that your company may have a progressive discipline policy or policy that details performance management, and that there may be language in a performance improvement plan or other performance management document that sets forth next steps for an employee. Human resources employees, company executives, company supervisors – in short, anyone who might have the authority to bind the company – should also be reminded frequently that they must take care in communications with employees, whether written or oral, and whether related to performance or not. Certainly, “employment at will” is not always the case, and even “at will” employees believe they can rely on their employer’s written policies or statements related to employment status and processes. While review and awareness of agreements, policies, and representations to employees might seem to be a basic premise, consider Lapidoth v. Telcordia Techs., Inc.,  in which an employer’s correspondence concerning leave was critical. In short, the New Jersey Appellate Division held that an employer had potentially created a contract when it sent its employee a letter granting the employee’s requested leave “with a guarantee of reinstatement.” The court concluded that the routine communication could be evidence of a contractual obligation that, in terminating the employee, the defendant company had breached.

Second, when an adverse employment action is presented, we all expect it will be accompanied by a laundry list of explanations as to why it is essential to take certain action with regard to a particular employee. But occasionally our client decision-makers are not educated regarding conduct that is protected by law or are focused only on the conduct or performance at issue. Indeed, while many have been educated concerning the anti-retaliation provisions of Title VII and parallel state laws as well as leave laws, and thus may tread carefully when employees have made a complaint or taken leave, these same decision-makers may not be considering other protected conduct. For example, has the employee engaged in activity that might be deemed protected under the National Labor Relations Act? Consider the highly publicized “Facebook firing” case, in which the National Labor Relations Board challenged an employer that terminated an employee for criticizing her boss on her Facebook account, characterizing the criticism as “concerted activity.” See American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters, Local 433.²  In light of this case, as well as subsequent complaints issued by the NLRB, any termination or discipline decision based on a Facebook or other social media posting, or even an employee complaint, should be subjected to substantial scrutiny and analysis. In that vein and by way of additional example, have the decision-makers considered whether an employee who is perceived as engaging in aggressive and seemingly unproductive complaining actually engaged in protected activity, that is, whistleblowing? Some supervisors might not discern the difference. Again, awareness of these topics would optimally be discussed in a supervisory training session or an annual performance management workshop, but if not they are prime to raise before the business is too far down the road in its decision-making process. In addition, review of (and, if necessary, updating) company policies on these topics, as well as ensuring company-wide dissemination and acknowledgment, is also a step toward laying the foundation for future action.

Third, we should all employ a checklist of both questions and documents. This will help ensure consistency and will allow the decision-makers to approach the process in the same way each time, knowing what we are looking for. Generally, questions concerning possible statutory claims, the employee’s recent history, and how putative comparators have been treated should be routine. In addition, we cannot be hesitant to review and question the documentary support for the proposed adverse employment action. Indeed, recent decisions, such as the United State Supreme Court’s in Staub v. Proctor Hospital,³  and the Third Circuit’s in McKenna v. City of Philadelphia,⁴  teach us that we cannot simply “rubber stamp” or devote less than thorough scrutiny to recommended actions. In brief, these expansive interpretations of the “Cat’s Paw” theory hold that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination, even where the decision-making process involves a second level of unbiased review. To best protect the company, at a minimum we need to ensure that the decision has ample support and is more than defensible, and that the treatment afforded the employee neither differs from that afforded comparators nor is causally linked to any protected category or activity.

While some of these concepts appear to require application of simple common sense, we all have a tendency to either get wrapped up in the facts of the individual employee’s deficiencies, or to focus on the legal risks. And we cannot expect that our clients see our legal concerns - which are well-justified in light of recent statutory amendments and case law - as more than just “road blocks” until we lay the foundation for decision-making. Establishment of policies and processes, education, and frank discussion of the macro- and micro-issues, as opposed to a rubber-stamp, will allow us to partner with our clients and provide them with the tools to reach consistent, well-supported and (if need be) defensible decisions.

FOOTNOTES:

1. 2011 N.J. Super. LEXIS 103 (App. Div. June 9, 2011).
2. Case No. 34-CA-12576 (2010).
3. No. 09-400, 562 U.S. ____ (Mar. 1, 2011).
4. 09-3567 (3d Circ., Aug. 17, 2011).

Kelly Ann Bird, Director of the Employment and Labor Group at Gibbons,P.C., devotes the majority of her practice to employment and labor litigation and counseling on behalf of management. Her experience includes defending discrimination, harassment and whistleblower claims, wrongful discharge, tort and contract claims, and litigating restrictive covenant and trade secret matters.