HR professionals generally want to give wayward employees opportunities to do better. So, situations commonly arise where an employee who consistently violates work rules and demonstrates less than professional behavior is given multiple chances to improve. Inevitably, most of the time such an employee fails to fully improve and the time comes to let the employee go. And just as inevitably, when he is terminated the employee contends that he should not have been terminated and 1) seeks unemployment compensation, 2) files an EEOC charge, and/or 3) sues for discrimination, harassment, retaliation, and whatever else he can conjure up. Suddenly all of your good intentions are thrown back in your face, leaving you wishing you would have just fired the employee without giving him all those additional chances to try to improve.
In a recent case out of New Jersey, the employer learned a very tough lesson on the pitfalls of second chances. In St. Cyr v. Brandywine Senior Living, Inc., the employee was terminated after violating multiple work rules. Surprisingly, the employer later re-hired her. After she returned to work, she violated another work rule and was given a final written warning. Shortly thereafter, she requested leave under the Family and Medical Leave Act (“FMLA”). She then committed another infraction and was terminated two days before taking her leave. The employee sued, alleging that she was terminated in retaliation for requesting FMLA leave. Despite all of the seemingly clear reasons for terminating the employee based on her work rule infractions, the court allowed the case to go to trial because the proximity of the termination to the employee’s FMLA leave was “unusually suggestive,” and therefore a jury would need to evaluate the credibility of the parties to make a final decision on whether her termination was for her infractions or her requested FMLA leave.
A recent unemployment hearing further highlights the potential pitfalls of second chances. During the hearing, the manager testified that the former employer was: (i) formally disciplined for recording time on his time sheet that he did not work; (ii) tardy to work 42 times in three months; and (iii) outwardly rude and hostile during a counseling session about his excessive tardiness. Despite these very serious infractions, the employee was offered a different work shift in lieu of termination. He declined and so he was terminated. In the employee’s unemployment hearing, he argued that he was terminated for not accepting the position instead of his excessive tardiness. The hearing officer asked the manger the following questions:
• If you have documented evidence that he was stealing time, why didn’t you terminate him then?
• If arriving to work on time is an essential function of his position, why did you wait until he was tardy 42 times before terminating him?
• If he was unprofessional during a counseling session, had already stolen time, and demonstrated a pattern of excessive tardiness, why didn’t you terminate him at that point?
• And why after all of the aforementioned issues with his job performance did you offer him another position with the company?
Despite these difficult questions for the employer, the hearing officer fortunately still denied unemployment benefits. However, these questions opened the manager’s eyes to the potential pitfalls of second chances – especially multiple “second” chances.
Ultimately, the lesson here is not that you should be quick to fire wayward employees, but that you should carefully evaluate each case of employee misconduct and ask yourself – “Should she be given a second chance?” There has to be a limit, and there has to be some consideration of both the positive and potentially negative impressions the second-chances given will make on the employee, co-workers and third-parties (including hearing officers and potential jurors).