Making Lemonade: Just Cuz Or Just Cause Discipline?

lemon

 

Just Cuz Or Just Cause Discipline?

 

Just Cuz’ I want to is a sufficient reason for discharge in an at-will employment situation. In the public sector, “Just Cause” is a very common element of employment and is becoming more prominent in private sector employment. Some states integrate just cause into the fabric of the legal elements in “for cause” termination. In a true labor/employment written contract, when “just cause” is included as a basis for termination it looks something like this:

“An employee may only be disciplined or discharged for just cause.”

Seems simple right? Not necessarily. Just cause originates from a labor employment arbitration by Arbitrator Carroll R. Daugherty (Enterprise Wire Co., 46 LA 359(1966)) wherein he synthesized then notions of just and proper cause for discipline and discharge that had been used in arbitration decision in previous decades. Enterprise Wire was an absenteeism case. Arbitrator Daugherty stated seven questions that an employer must ask when determining whether to discipline or discharge an employee. If the employer answers “No” to any of the seven questions then they do not have “just cause” for their action and the arbitrator or judge would overturn the employer’s decision.

All public sector employees are entitled to “due process” for discipline and discharge whether stated in the organization or entities policies and procedures. Private sector employees in “At Will Employment” states are not technically entitled to “due process” because they can be discharged for any reason or no reason. Personally, I believe “due process” is always a good idea, but employers can make that call based on their risk aversion tolerance.

You may be asking, “What is due process?” Well, arbitrators and lawyers struggled with that question and it exceeds the scope of this article, suffice it to say that “Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person.” Notice that the definition includes State actors. Some have interpreted this to mean that employers who are not a state or governmental entity are not required to provide “due process.” That is generally true, but private employers need to be aware, that even though due process generally refers to protections provided against State action, the states have often written into statutes rights that employees who work in their state have. This means that even in “at-will employment” states there may be occasions when an employer is expected to provide “due process.” Arbitrator Daugherty incorporated “due process” into the first four questions of his seven question test (see below 1-4).

Many private sector employers who have employee handbooks with provisions that state employees will only be disciplined for “cause”, “good cause”, or “good and just cause” have been surprised to learn when sued for wrongful termination that their handbook is interpreted to provide discipline and discharge only for “just cause.” You may also have policies or provisions that refer to “progressive discipline.” These too have resulted in interpretations that the employee was entitled to due process and in some instances “just cause.” If you have such provisions in your employee handbooks you should have them reviewed by your legal counsel practicing in your home state. You may want to revise those provisions of your handbook to avoid the “just cause” trap.

What about “due process?” A simple way of thinking about due process is basic fairness. Does an employee have a right to know what is expected of them? Does an employee have a right to know what they are being accused of? Does an employee have a right to a fair investigation of charges? Does an employee have a right to provide an answer to accusations made against them or provide evidence when they are being disciplined or terminated for misconduct? They may or they may not, depending on your state laws, employment policies, procedures, or employee handbooks. You may want to ask yourself how you would like to be treated as a private sector employee in response to each of these questions. As a public sector employee you have these rights constitutionally.

Enter Arbitrator Daugherty and his decision in a case involving a non-state employer in private sector. Daugherty created the seven tests of just cause that incorporate both “due process” and procedural safeguards for employees subjected to discipline as a basis for arbitrator’s to decide cases involving discipline and discharge. The seven tests have near universal acceptance in employee discipline and discharge cases for cause. Here they are:

1. NOTICE: Did the employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s disciplinary conduct?

Translation: Did you tell them if you do that, or don’t do that you can be disciplined or possibly fired? There are some things that are common knowledge and you don’t have to have a workplace rule, for example, “Don’t steal or you may be disciplined. Don’t molest children at work. Etc.

2. REASONABLE RULE OR ORDER: Was the Employer’s rule or managerial order reasonably related to (a) the orderly efficient, and safe operation of the Employer’s business, and (b) the performance that the Employer might properly expect of the employee?

Translation: Do you have a sound business basis for your work rule and are your performance expectations for the employee reasonable in your industry or business?

3. INVESTIGATION: Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

Translation: Did you shoot first and ask questions later or did you ask all the questions necessary to fairly discover the facts of what happened before shooting? Did you attempt to find out whether the employee actually knew what the rule was they supposedly violated, or if they were actually the one who violated it. Assumptions are deadly! Facts are your friend!

4. FAIR INVESTIGATION: Was the Employer’s investigation conducted fairly and objectively?

Translation: “I got you now!”–Probably does not indicate a fair investigation. A fair investigation means that you have objectively sought out all of the information you would want a decision maker to have if you were the one being considered for discipline. If ten people were involved, you should speak to all ten people before making a decision. Facts are your friend!

5. PROOF: At the investigation, did the decision maker obtain substantial evidence or proof that the employee was guilty as charged?

Translation: A gut feeling doesn’t work. Let’s take a look at Indiana University Human Resources application of substantial proof:

“Substantial evidence or proof of guilt must exist to clearly establish that the employee did violate the work standard or rule. Evidence can be documented or witnessed it cannot be rumors, unsupported accusations, or superficial allegations. “Substantial” is determined by what is called the “reasonable person” standard: given the available information, how would a reasonable person evaluate it? If the evaluation falls short of this standard, return to the investigation or drop the issue.”

There you have it. The investigator must apply a reasonable person test in determining if the evidence is substantial enough to warrant discipline.

6. EQUAL TREATMENT: Has the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?

Translation: “The goose and the gander: if its good for the goose, its good for the gander.” If you haven’t fired others for the same infraction then you probably shouldn’t fire this employee for it. If other employees have only been given warnings, then you should be consistent and give a warning to this employee. There are exceptions. If this employee has had multiple warnings and other disciplinary actions then apply the “Straw that broke the camel’s back rule.” Keep in mind the straw that broke the camel’s back rule must be applied by a reasonable person.

7. PENALTY: Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his service with the Employer?
Translation: Does the punishment fit the crime. How serious was the violation of a work rule? Did you consider all of the employee’s prior work history with the company? It is probably not a proper penalty to punish a thirty-year employee with discharge for coming to work late once or twice, if it is once or twice in thirty years. One poor performance evaluation by a new supervisor after 29 years of positive evaluations by multiple supervisors, is probably not a good idea. However, one on the job fist fight even though there have been 29 fight free years, may be grounds for discipline up to and including discharge.

SUMMARY

If you are an at-will employer in private sector, you should take steps to insure that your policies and procedures or employee handbooks do not rope you into a just cause standard for discharge. Private sector employers can generally discharge an employee “just cuz” they want to and generally do not have to give a reason. I suggest however, that if you decide not to give a reason for discharging an employee, don’t oppose their unemployment benefits because they engaged in misconduct of some sort. You are only inviting a lawsuit or Bureau of Labor complaint for some discriminatory discharge claim. If you are going to fire someone for cause, even if you are not required to apply “just cause” at least ask yourself the just cause questions before you finalize your decision. It is the prudent and safe thing o do.

If you are a public sector employer, unless you are exempted from “just cause”, you should really evaluate your disciplinary decisions taking into consideration each of the just cause questions.

Just Cuz or Just Cause, it’s your decision. I prefer to err on the side of caution. Doing discipline right is always cheaper than doing it quick.

http://www.indiana.edu/~uhrs/training/ca/substantial.html

[disclaimer]

Posted in Making Lemonade, Problem Employee Solutions and tagged .