the ruby files: the terminator. you won't be back

Polsinelli PC. In California, Polsinelli LLP

The Ruby Files: Managing the Challenging Employee

The Terminator. You Won’t Be Back.Eric E. Packel, Joan Killgore, Robert Entin, Scott Gilbert, Gillian Bidgood

real challenges. real answers. sm

• Ruby – 39 years old• Hired as Unit Supervisor at Hospital• Supposed to Supervise RNs• Filed previous D.O.L. Complaint re:

misclassification and hours.

Where We Left Off

Ruby’s Performance Problems

• Patient complaints re: nurse attentiveness,

rudeness.

• Ruby given Verbal Counseling to supervise and

train better.

• After Verbal Counseling, Doctors complain of

similar issues, lack of organization in unit.

H.R. Meeting to Discuss Warning

Chris: Ruby, have a seat. I’ve brought you in today because you are receiving a Written Warning.

Ruby: Shocker.

Chris: Ruby, this can’t be a surprise. You know there have been complaints. You know the Unit is disorganized.

Ruby: Yeah, well, when I’m spending a lot of time inputting data in charts, it’s hard to supervise.

Chris: Ruby…

Ruby: Just call me Carpal Tunnel Woman. Seriously.

Chris: Ruby, do you have any questions about the Warning?

Ruby: You know what Chris? I’m not dealing with this anymore. Fine. Give me the warning. All you all are doing is stressing me out and giving me migraines. And on top of those, I swear I have carpal tunnel from all the data entry I’m having to do. That it?

Chris: No, wait. You said “carpal tunnel” twice. Are you claiming you have carpal tunnel?

Ruby: Do you even know anything about me?! Whatever.

Chris: Okay, well let me ask you this: Have you completed a Request for Accommodation form?

Ruby: No.

Chris: And you know what those are?

Ruby: I don’t know. I don’t know. This is very depressing.

Chris: Well I will get you a Request Form. If you really think you need an accommodation, then you can fill

one out.

Ruby: Yeah let me get right on that Chris. In between delivering meal trays, trying to supervise and trying not

go into severe depression, let me make my wrists worse by typing up a form.

What Did Ruby Really “Say”? How Did H.R.

Handle?

• Did She Trigger a duty? Buzz words she used.

• Obligation to engage in interactive process:

• The Employee’s request need not include the “magic words” “reasonable accommodation.”

• But, the notice must make clear the employee wants assistance for her disability.

• Once the Employer knows 1) of the disability and 2) the desire for accommodation, Employer has burden to request additional information and engage in interactive process.

• Employer cannot “in the face of a request for accommodation, simply sit back passively, offer nothing, then in post-termination litigation, try to knock down every specific accommodation as too burdensome.”

See e.g. Peter v. Lincoln Technical Institute, 255 F.Supp.2d 417 (E.D. Penn. 2002); Broadwater v. Minnesota Dept. of Human Services, 22 F.Supp.3d 989 (D. Minn. 2014).

ADAAA and Impairments Ruby mentioned

• What “impairments” did she mention?

• ADAAA and the lighter burden on employees to prove “disability.”

• Carpal tunnel a disability?

– After the amendments, case law clear it can be if substantially limiting.

• Migraines a disability?

– Some case law has held chronic pain alone does not establish a disability, because plaintiffs haven’t shown they substantially limited a major life activity. See e.g. Rocco v. Gordon Food Serv., 998 F.Supp.2d 422 (W.D.Pa. 2014).

– But, impairments that last only for a short period of time “may be covered if sufficiently severe.” Section 1630.2(j)(1)(ix): Effects of an Impairment Lasting Fewer Than Six Months Can Be Substantially Limiting.

MUST BE PROTECTED AND CONCERTED

• PROTECTED is

ANYTHING pertaining

to the terms and

conditions of

employment (e.g.,

wages, benefits, hours

of work,

overtime…even mean

supervisors)

• CONCERTED = MORE

THAN ONE.

• “If a tree falls in a

forest…”

“Likes, Retweets, & Forwards”

• Three D, LLC (Triple Play),

361 NLRB No. 31 (2014)

• A Facebook discussion was

protected, concerted

activity because it involved

current employees engaging

in discussions about the

wrongful withholding of

taxes.

• NLRB held that Facebook

discussion pertained to a

labor dispute, even though

the employer was non-

union.

• An employee who did

nothing more than “like”

the conversation was

protected under the Act.

This is akin to the silent

employee at the water

cooler, shaking her head.

Continued Performance Issues

• Ruby cusses at physician who asks for her

assistance.

• Additional complaints about organization.

• Brought in for Final Written Warning.

Final Written Warning Meeting Gone Awry

Chris: Ruby, I’ve brought you in for a final written warning. I’ve asked Michelle to sit in.

Michelle: Ruby, I want you to succeed but you’ve already had a written warning. Now we have another issue. Did you tell Dr. Van Nostrom to “kiss your a**”?

Ruby: No.

Michelle: Ruby, I heard you!

Ruby: You spying on me Michelle?

Michelle: Ruby, my office is right by you.

Ruby: You couldn’t have heard me – you’re never there!

Chris: This isn’t about Michelle.

Ruby: Well it should be. She can’t raise a damn finger to help me, now she’s giving me this sh**?

Michelle: What did you just say?!

Chris: This meeting is over.

Ruby: Why? Because you don’t want to listen? Because I can’t explain?

Chris: No, because you’re not being respectful.

Ruby: This is a joke. You’re a clown. Michelle is a clown! What a circus this place is.

Chris: Ruby, can you be respectful?

Ruby: No, I can’t! No I really can’t, Clown.

Chris: Then Ruby, we are moving straight to termination. I’ll escort you to your station to get your personal items.

Ruby: Oh, this isn’t over. Mark my words. CLOWN!

• Was termination appropriate?

– What was the basis?

– Need to satisfy Progressive Discipline?

– Fit within Progressive Discipline policy?

• Retaliation issues?

– Could Ruby state a claim?

– Previously complained of misclassification; good

faith request for accommodation?

Demand Letter from Lawyer

Enforceable Arbitration Agreement?

• Depends where you are.

• California:– Acknowledgment of Handbook insufficient. Mitri v.

Arnel Management Co., 69 Cal. Rptr.3d 223 (Ct. App. 2007); Romo v. Y-3 Holdings, Inc., 105 Cal. Rptr. 208 (Ct. App. 2001)(Plaintiff did not sign separate arbitration section.); Sparks v. Vista Del Mar Child & Fam. Svcs., 145 Cal. Rptr.3d 318 (Ct. App. 2012)(Handbook “not intended to create a contract.”)

– But, separate Arbitration Agreement with Handbook enforceable. Serafin v. Balco Properties, Ltd., 185 Cal.Rptr.3d 151 (Ct. App. 2015)

• Other states where Handbook Acknowledgment enforceable:

Alabama - McNaughton v. United Healthcare Services, Inc., 728 So.2d 592 (Al. 1998)(Acknowledgment stated Handbook contained “guidelines except for the provisions of the Arbitration policy.”)

New Jersey – Brooks v. Barkdale Senior Living Communities, Inc., No. 12-CV-2821 (D.N.J. 2012)(Noting liberal construction of arbitration agreements); see also Martindale v. Sandvik, 173 N.J. 76 (2002)(Arbitration clause in Application valid.)

Ohio – Corl v. Thomas & King, 2006WL1629740 (Ct. App.)(Acknowledgment in Manager’s Handbook valid)

Texas – In re Dallas Peterbilt, 196 S.W.3d 161 (Tex. 2006)(Acknowledgment of Summary Plan Description of Arbitration Agreement valid); In re Tenet Healthcare, Ltd., 84 S.W.3d 760 (Tex. Ct. App. 2002)(Acknowledgment that company could change any policies “except the Mutual Agreement to Arbitrate.”)

• Handbook Acknowledgment not Enforceable:

Missouri – Whitworth v. McBride & Son Homes, Inc.,

344 S.W.3d 730 (Mo.Ct.App. 2011)(Even though

Arbitration Agreement referenced in Employment

Contract and Handbook).

Michigan – Heurtebise v. Reliable Business

Computers, Inc., 452 Mich. 405 (1996)(Handbook

stated Policies “do not create any employment or

personal contract.”)


Arbitration Tips and Thoughts

� Do you want an A.A.?� Consider your jurisdiction in deciding.� If you want arbitration:

– Arbitration Agreement separate from Handbook? Or– Acknowledgment?

� If Acknowledgment, statement to the effect that “Notwithstanding that the Handbook is a guide, the Arbitration Agreement is a Binding Agreement.” Have this Acknowledged separately.

� In the Actual Agreement/Policy:– Neutral Arbitrator– More than minimal discovery– Written award– Relief otherwise available– Do not require Employee to pay unreasonable costs (similar to filing fee)


Coming Up…

� Ruby gets another job� Fails to mention termination� Some whispers and winks� Happy 40th to Ruby! Or not.

� May 11, 2016!


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