Excerpted from West Virginia Employment Law Letter, written by attorneys at the law firm Steptoe & Johnson PLLC.
Trouble employees - everyone has them. Employers are constantly faced with situations in which employees create unnecessary problems in the workplace. All too frequently, the employers react by concluding, "I'll just fire this person and get rid of the problem." Beware of that situation because firing troublemakers can create undue legal liability for your organization. Let's look at some sample scenarios.
Q: George Curious has been asking a lot of questions lately about how the company keeps its timecards. Recently, he has been questioning me about who transcribes the written entries on the timecards to the computerized recordkeeping program, who has access to the timecards, and how overtime is recorded and computed. I recently learned that he was seen meeting with a well-known attorney in town, a man in a yellow hat who has a reputation for filing lawsuits against employers for unfair pay practices. Can we fire George?
A: You may not retaliate against or fire an employee who has filed a complaint under the Fair Labor Standards Act or who's participating in an investigation regarding alleged minimum wage, overtime, child labor, or Equal Pay Act violations. But you probably should get your house in order, and if you have been violating the law, you should hire counsel and go into "damage control" mode.
Q: Irene Injured is always getting hurt on the job. Last month, she was injured when she inadvertently stapled herself with the electric stapler. Last week, she left work early again for another migraine headache due to her noisy workspace, which is located next to the copier/scanner. And just this morning, she slipped on the icy sidewalk in the company's parking lot and had to go to the emergency room for treatment. She's constantly getting hurt, and our workers' comp rates are going to increase. Can we fire Irene?
A: You may not discriminate against an employee for receiving or attempting to receive workers' compensation benefits or for assisting another employee in filing or pursuing a claim.
Q: Sharon Stocktrader knows everything about the markets. Always carrying the Wall Street Journal and quick to offer investment advice, she has been asking very probing questions about the company's retirement plans. She wants to know who's receiving commissions from the company's pension plan, how the funds are being invested, who the fund managers are and their investment experience, and who within the company has been receiving investment advice. Her impromptu "seminars" in the employee lunchroom are attracting larger and larger crowds. Can we fire Sharon?
A: The Employee Retirement Income Security Act prohibits firing an employee for seeking information or benefits under an employee benefit plan.
Q: Peter Purloin is always asking questions about how the petty cash fund is handled. His recent questions have been very pointed. He asked about who handles the money, how often the money is deposited into the bank, and how much money is normally kept in the fund. When I came to work this morning, I discovered that the fund had been stolen. Since Peter works the night shift, I'm going to ask him to take a polygraph exam as part of the investigation. If he refuses to take the lie-detector test, can we fire him?
A: You may not require an employee to submit to a polygraph test or fire an employee who refuses to.
Q: Donna Deadbeat is constantly complaining about how she's behind with her bills. During her lunch break, she's always balancing her checkbook at her workstation. She recently told us not to call her at home because her home phone had been disconnected. I just received notice from Citibank that we need to garnish her wages because she owes the company $10,000. Obviously, we don't want people like that in our organization. Can we fire Donna?
A: Under the Consumer Protection Act and the Wage Garnishment Act, you may not fire an employee simply because her wages were garnished to satisfy a debt to a third party.
Q: Mark Miner has been an underground coal miner for our company for 19 years. He knows the ins and outs of our mine. He recently complained about our safety record, which he accessed from the Internet. Given the recent coal-mining tragedies, Mark has become more vocal about his concerns for his safety and our company's safety record. He also has mentioned that he knows of many more safety violations that the inspectors missed. He told me that he was going to call the inspectors and tell them that there were several safety violations they missed. Can we just fire him?
A: You may not retaliate against an employee for asserting the various safety rights guaranteed by the Mine Safety and Health Act. Moreover, you should work closely with qualified counsel to address Mark's underlying concerns.
Q: Vickie Voter is anxiously awaiting election day. She has been talking a lot about the upcoming election and who she's supporting. The election is next Tuesday, and that just so happens to be the day that we check our inventory. When we check inventory, we generally start very early in the morning and don't finish until well after midnight. We can't afford to have anybody out that day. Vickie told me that she's going to need at least an hour sometime that day to go to the polls. If she's gone that day for an hour or more, it will seriously hurt our ability to get all our work done. I told her that I wasn't sure if she could be out that long on that day. Can we just fire Vickie and hire someone we know will be here that entire day?
A: It's a misdemeanor for you to refuse to allow an employee time off to vote or to attempt to prevent the employee's free exercise of the voting franchise by threatening her with discharge.
Q: Jerry Jury recently advised me that he has been called for jury service. It just so happens that he'll be on the jury in a murder case involving the well-known celebrity P.J. Sampson, who has been accused of murdering his wife. He told me that the case is likely to last seven to nine months. We have a tight work schedule, and we're very busy this time of year. We need all the company's employees working during this critical period. Can we tell Jerry that he can serve on the jury but we aren't sure his job will be here when he gets back?
A: The law prohibits you from threatening to dismiss an employee for serving on a jury, and it further guarantees an employee the right to reinstatement upon completion of jury duty.
Q: Wendy Wiccan is a very spiritual person. That wasn't always the case. She used to be very quiet and reserved. That changed recently when she returned from a convention of the Wiccan religion. After she attended the convention, she redecorated her office with artifacts and decorations of her religion. She also dramatically changed her wardrobe to be more, as she describes it, "spiritually centered." This is the first time I, and most of the people in our company, have heard of this religion. In our small town and close-knit company, Wendy sticks out like a sore thumb. Our organization is a wholesome, traditional company, and we aren't sure we want anyone with those religious beliefs working for us. Can we fire Wendy?
A: You may not treat employees differently because of their religious beliefs. "Religion" includes all aspects of religious observance and practice as well as belief.
Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from WEST VIRGINIA EMPLOYMENT LAW LETTER. West Virginia Employment Law Letter should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area.
