In yesterday’s post, my colleague Chris Engler discussed the “wilful” misconduct standard and how it applies when your employee is otherwise eligible to receive unemployment compensation.

Today, Chris returns and has a quick quiz to review some recent cases of how this standard has been applied.

So, you think you know what the “wilful” misconduct standard is. But do you know how it is applied?

Consider a handful of cases decided by the Connecticut Unemployment Board of Review in the last few weeks, and try to guess how they came out under the standards we outlined in yesterday’s post.

Case 1: A box truck driver had signed a last-chance agreement under which he would be terminated if he failed a drug or alcohol test.  The driver, who had admitted to an opiate addiction, later tested positive for cocaine.  Because this violated the last chance agreement, he was fired.

(Decision: not disqualified, because his addiction was the basis for his misconduct.)

Case 2: A cleaner at a gym was fired for repeatedly failing to clean properly and generally being negligent in his duties.  He explained that he did his best and occasionally missed candy wrappers and spills.

(Decision: disqualified, due to his “history of loafing” and “pattern of negligence.”)

Case 3: A nursing facility employee was discharged for allowing a patient to possess cigarettes inside the facility.  The decision does not mention whether the patient ever used the cigarettes.  The facility prohibited possession of cigarettes due to the risk of fire near patients’ oxygen machines, but the employee said that the policy was not usually enforced.

(Decision: disqualified, because the employee knew of the policy and the seriousness of the risk.)

Case 4: An operator of a picker (similar to a forklift) crashed his machine twice in four months – once into another picker and once into a pole.  The employer’s policy called for discharge after two at-fault accidents.

(Decision: not disqualified, because the Board consider the employee merely negligent.)

Case 5: A restaurant server was fired after she engaged in a conversation with a customer and the restaurant’s bartender about the customer’s inability to pay a tip.  The record is not clear whether the server was argumentative with the customer.

(Decision: disqualified, because she was “recklessly indifferent to the employer’s interests.”)

As these cases indicate, it is difficult to identify a pattern or generalize about the outcome of unemployment cases.

However, because the Board of Review’s inquiries are so fact-specific, it is important that the employer properly investigate and document the facts underlying its decision to fire.

That might be the difference between a clean break and an ongoing financial obligation.

My colleague, Chris Engler, is back today with post getting into the ins and outs of the willful misconduct standard at the Connecticut Department of Labor. Last week, we had a senior CTDOL official speak to our Labor & Employment seminar about this and other pressing topics of interest to employers. 

The bottom line: When you fire an employee, the employee is probably going to get unemployment compensation unless you can show “wilful misconduct”.  Here’s how:

You have caught an employee red-handed engaged in some misconduct.  Or perhaps the employee has violated some rule on numerous occasions or in a particularly problematic manner.  Either way, you investigate and decide to fire the employee. 

Barring some sort of lawsuit for wrongful discharge, your ties with the employee are cut, right?

Wrong.  You might still be on the hook for unemployment benefits.

Employers often assume that having a good reason for firing someone is enough to ensure that the employee doesn’t receive benefits. 

But the law requires something more than just a good reason.  (Dan discussed an example of this last year.)

The standard is “wilful misconduct.”  (Yes, the regulations use “wilful” with only two Ls.) 

This term has three subspecies: (1) deliberate misconduct in wilful disregard of the employer’s interest, (2) a single knowing violation of a reasonable and uniformly enforced rule or policy, and (3) absenteeism without good cause. 

Of course, each of these subspecies has detailed definitions, but the terms are already fairly self-explanatory.

Although these terms might seem very legalistic, the Unemployment Board of Review (which reviews decisions of unemployment eligibility) employs a fairly fact-specific analysis.

In tomorrow’s post, we’ll look at five cases and see if we can draw any lessons from each.

A case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question:

When a jury  finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court?

The EEOC argued yes and argued that remedies such as preventing the harassing employee from returning to the workplace were appropriate. 

Um, there’s a problem in Aisle 3.

The Second Circuit agreed in part, saying that ordinarily a termination of a lone harasser should be enough. But the court said that given the egrigious facts of this particular case, something more should’ve been done to protect the female employees from potential future harassment.

The case, EEOC v. KarenKim, Inc. (d/b/a Paul’s Big M Grocery), can be downloaded here. 

There’s a lot of facts to the case, but this summary, by the Outten & Golden Employment Law Blog, captures some of the salient points:

KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.

At trial, a number of current and former employees testified about Manwaring’s sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never “let her out of his sheets” and that “if he was 10 years younger, he would be on top of her.” He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.


Continue Reading What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred?

It’s so rare nowadays that the Connecticut Supreme Court rules on discrimination cases that, when I first took a look at its new decision in Duart v. Department of Corrections (download here) — officially released next week — I got excited.  After all, the case is based on a claims of gender, race and sexual orientation discrimination. Even the CHRO submitted an amicus brief in support of the decision.

Connecticut Supreme Court

But upon further review, it’s a decision only the lawyers will love; for employers, the case lacks the oomph to make it significant.

At issue is whether a party seeking a new trial on the basis of alleged knowing and deliberate discovery misconduct must show that the result at a new trial would likely be different.  The court concludes yes; the party must show that a “different result” would have occurred — a high standard indeed to meet.

In reaching that conclusion, the court basically notes that discovery has become so difficult that the other party can often find something to complain about. That would lead to chaos, according to the court.

Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the pre- sent case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which relitigation would be a pointless exercise.

For employers, it’s hard to take away much from this decision.  It’s a procedural decision that may impact discovery and trials. But for human resources professionals, it’s not going to have much, if any impact.

The sad reality is that, on rare occasion, some employees will revert back to their middle school days and behave like a couple of children. Some will even resort to physical fighting. In such a case, employers are faced with a difficult question — can I punish one employee more than other if I think they "started" it?

The answer has not always been as clear as you’d like in Connecticut.  Indeed, earlier this month, I commented about a case where the employer punished both employees — and was still subject to a discrimination claim.  But the Second Circuit provided some helpful guidance to employers and suggests that not all fights need to be treated the same. 

The Second Circuit yesterday released an interesting "summary order" (being it is not "binding precedent") that tackles the subject even further.  In Mincey v. University of Rochester (download here), the Court was faced with an age discrimination claim by a former employee who was terminated for her role in an altercation with a younger co-worker, who was not. 

The employer moved for summary judgment on the claim arguing that the termination, which resulted from determining that the Plaintiff was the instigator, in an altercation, did not give rise to an inference of age discrimination.  The lower court granted the employer’s motion and the employee appealed.

At first, it appears that the court is going to overrule the District Court’s decision. Indeed, it concludes that the district court erred in finding that the employee was not terminated under circumstances giving rise to an inference of discrimination:

Although it is true, from the record, that Mincey admitted to striking [her co-worker], the record also demonstrates that she consistently stated that she had struck [her co-worker] only after he had struck her with his index finger. Taking the evidence in the record in a light most favorable to Mincey, her contention that [her co-worker] hit her first is sufficient to demonstrate that her termination gave rise to an inference of discrimination.

But the court quickly shoots down the employee’s claim that her evidence was sufficient to send the case to trial because it found that the employer’s decision was not false or "pretextual".

[E]ven if the conclusion made by the Hospital after its investigation was incorrect– even if [the co-worker] did actually strike Mincey first — so long as  that conclusion was the “actual purpose” for her termination, Mincey’s age-discrimination claim fails. An incorrect conclusion, while unfortunate for Mincey, does not constitute age discrimination.

Notably, for employees and their counsel, the case does highlight two arguments that could have been made that might have helped the employee’s cause — but were not. 

For example, the court notes that "Mincey offered no evidence that the investigation was improperly conducted for the purpose of providing a pretextual explanation for an otherwise discriminatory termination." The court also notes that plaintiff did not offer evidence "to suggest that other employees who had struck their coworkers had not been terminated by the [employer], or to rebut the [employer’s] evidence that it uniformly terminated employees for fighting. "

The case shows that for employers, a consistently applied disciplinary policy will assist the employer in defending against discrimination cases.  It also reinforces the notion that were an employer conducts an investigation before terminating employees, that investigation should be thorough enough to withstand some criticism.  The case highlights the fact that employers should not be afraid to treat employees in a fight differently, but should be prepared with a good reason for doing so.

As cases go, Smith v. Connecticut (D. Conn., Jan. 9, 2008) (Bryant, J.) will not rank up there in the annals of legal history.  Hartford Correctional Center from the air(Even the name of the case sounds generic.)  Moreover, when you read the facts, the case doesn’t scream "precedent".  The Smith case, however, reinforces the notion that consistently applied disciplinary policies are typically key to avoiding discrimination cases, as I’ve stated previously

But the case also shows that there need not be a blind application of this rule to the specific case you may have at hand.  Each case may be different, whether based on the position that someone holds (supervisor/non-supervisor) or the severity of the incident alleged. 

According to the Court:

On November 20, 2004, Smith was acting as shift supervisor at the Hartford Correctional Center when another lieutenant, Rhonda Arnold, confronted him and initiated an argument. Arnold grabbed certain papers away from Smith,sat on them, and refused to return them. A third lieutenant, Kyle Godding, observed the incident and told Smith to leave the room so that Godding could try to retrieve the papers from Arnold. Smith did not leave, and Arnold then struck him with her hand. Smith and Arnold proceeded to engage in a physical altercation, and Smith ultimately pinned Arnold against a window, grasping her shoulder with one hand and her neck with the other hand. Godding pulled Smith away from Arnold and stepped between them, but Arnold then picked up several objects from a desk and hurled them at Smith. Finally, Smith left the room. The entire incident lasted approximately five minutes. Arnold experienced redness on and discomfort in her neck after the altercation.

Smith and Arnold were subsequently placed on administrative leave and then terminated. … Smith then filed this action, claiming that the department terminated him because of his race. In Smith’s view, he received a harsher form of discipline for his role in the altercation because of his race. Smith and Arnold are both African-American.

Now, looking at the case, and the fact that both of the people engaged in the altercation were African-American (and both terminated), the initial instinct might be to simply argue that there is no disparate treatment here because both employees were fired.  But the employer here argued in the summary judgment papers, something further; that it had terminated white employees for the hartford correctional centersame or similar conduct.  (The employee’s brief in opposition can be downloaded here.)  It was an argument that ultimately the court said was unnecessary because none of the comparisons mattered.

All told, the evidence submitted by the parties indicated that 3 white employees were terminated for physical altercations, 5 white employees were not terminated for physical altercations, and 2 African-American employees were not terminated for physical altercations.  

The court, however, rejected comparison to all of them because there were not "similarly situated" to the Plaintiff. What does that mean? Most were not supervisors like Smith was; the Court found that it would only compare Smith to those who held the same rank or higher than he did.  And the incidents of physical conduct varied in scope from what was alleged here.

Therefore, the Court granted the Department of Corrections summary judgment noting, "it appears that the department has not terminated some African-American employees who were involved in violent workplace incidents, while the department has terminated some white employees who were involved in violent workplace incidents."   The Court concluded that there was insufficient evidence to suggest that the employee’s race was a factor in his termination.

The case highlights the need for consistency because any variation will be heavily scrutinized. But it also demonstrates that blind adherence to past cases need not be rigid. Courts will allow employers to view each case on its own if it is not similar to past incidents.  Suppose that an employee had been previously warned about their misconduct, while another employee had not. The Court would likely view those people as not "similarly situated" for purposes of a comparison should they later engage in misconduct.