Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

For 2015, more details to follow:

HR4U 101 Workshop, January 14, 2015. This will include information regarding the new employment laws and regulations for 2015 including the new “Paid Sick Leave” law. Here is a link with more detailed information on the Workshop.

 

January 21, Webinar on Coaching for Improved Performance

 

February 11, Webinar on Discipline

 

February 21, Institute of Management Accountants, San Gabriel Valley

 

Failure to Justify Equals Wrongful Termination Lawsuit

As one employer discovered the hard way, firing a long-term employee with a history of positive performance reviews is an excellent way to get sued for age discrimination, wrongful termination and retaliation – especially if the decision to fire the employee is based on poorly documented performance issues.

 

Although a lower court ruled that the termination was nondiscriminatory, a court of appeal overturned the lower court’s decision because the employer could not quantify either the number of or the potential seriousness of the employee’s alleged mistakes or identify “anything like a quantitative standard to which plaintiff’s performance might be compared.”

 

Carol Cheal worked in El Camino Hospital’s Nutrition Services Department as a Dietetic Technician (Diet Tech) from August 1987 until her discharge in October 2008 at age 61. 

 

Up to and including her performance evaluation in August 2007, Cheal had always received the highest rating on her performance evaluations. In July 2007, the hospital hired Kim Bandelier to supervise all employees on the clinical side of nutritional services. This included Cheal, who was the oldest employee under Bandelier. By January 2008, Bandelier accused Cheal of numerous shortcomings impacting patient care. The hospital terminated Cheal on October 10, 2008.

 

Cheal sued for, wrongful termination and retaliation and lost but Cheal appealed, and a court of appeal took a closer look at the evidence presented.

 

Much of the hospital’s evidence suggested that the errors attributed to Cheal were unacceptably grave because they implicated patient safety. Yet, there was no effort on the part of the hospital to analyze the seriousness of the mistakes or how her performance errors compared to errors made by other employees. The appellate court found no attempt by the hospital to quantify either the number or potential seriousness of mistakes committed by other persons performing duties similar to Cheal’s, or to otherwise identify anything like a quantitative standard to which Cheal’s performance might be compared.

 

The only performance benchmark put forth by the hospital was a performance evaluation form, which suggests that errors of the type attributed to Cheal would be acceptable at a rate of “less than one per day.” The hospital presented no evidence that Cheal committed errors with anything approaching a daily or even weekly frequency. Using the hospital’s own performance benchmark, there was no support for the trial court’s finding that “several mistakes on menus” over a period of four or five months supports a finding of unsatisfactory performance.

 

The hospital also presented evidence that Bandelier identified 19 distinct areas or incidents of unsatisfactory performance, 16 of which Bandelier labeled “coachings” of Cheal’s unsatisfactory performance. Cheal presented evidence that Bandelier’s assertions were not accurate: Bandelier’s notes were inconsistent with her statements; and the “coachings” were merely updates of information provided to all staff.

 

Cheal also provided evidence that Bandelier “hunted down” Cheal’s errors on her own initiative, while leaving the errors of younger workers to be discovered and reported, if at all, by others. To make matters worse, Cheal presented a declaration from Bandelier’s friend, who stated: “One evening when I was at Ms. Bandelier’s house for dinner, she said to me, ‘We shouldn’t have lunch anymore or talk socially at work … People are starting to notice I’m favoring the younger and pregnant ones.’” 

 

The appellate court concluded that since Cheal had a long history of satisfactory performance, a jury could find that Bandelier’s list of supposed deficiencies had more to do with Bandelier’s attitude toward Cheal than with Cheal’s actual performance. Cheal presented ample evidence that her performance was satisfactory, including the hospital’s own policies indicating that, at worst, she committed far fewer errors than might be anticipated, and deemed acceptable, in another person performing her duties.

 

The court held that the hospital cannot simply articulate a Cheal as a defense against a discrimination lawsuit. The hospital must be able to show that Cheal’s allegations cannot support her claim of discrimination.

 

Best Practices

• Train supervisors on properly completing employee evaluations and performance reviews.
• Ensure employee counseling sessions are properly documented and include a witness to verbal conversations so accurate records are maintained.
• If a new supervisor suddenly finds significant errors with a high-performing long-term employee, you may need to look into it.
• Make sure your supervisors and managers understand your policies and train them to implement the policies consistently.

   

Baptist Health South Florida to Pay $215,000 to Settle EEOC Disability Discrimination Suit 

Baptist Health South Florida, Inc., one of the largest health care organizations in South Florida employing approximately 14,000 individuals at eight facilities, will pay $215,000 and furnish other relief to settle a disability discrimination suit brought by the EEOC. 

 

The EEOC's suit alleged that Baptist Health South Florida and Doctor's Hospital discriminated against a general practitioner when they reversed their decision to accommodate the doctor's epilepsy by permitting her to limit her workday to eight hours a day.  Ultimately, the EEOC said, the company fired her because of her disability.

 

The consent decree settling the lawsuit requires live training annually for management officials, human resources personnel and recruiting personnel at Doctor's Hospital with an emphasis on disability discrimination and the exploration of modified work schedules as a reasonable accommodation.  The decree also requires the posting of a notice explaining the lawsuit.  Further, the decree mandates written reports describing all internal complaints of disability discrimination and monitoring by the EEOC for two years.  The monetary award includes back pay and compensatory damages. 

 

New Jersey Firm Pays $400K in Female Plumber Bias Case

A mechanical contracting firm in southern New Jersey has agreed to pay $400,000 to settle allegations it discriminated against female plumbers.

 

The state attorney general's office said Monday that Falasca Mechanical of Vineland will pay the state $250,000 and plumber Bette Feldeisen $150,000 to resolve the case.

 

Feldeisen is a member of Plumbers and Pipefitters Union Local 322 and was employed by Falasca for several years before being laid off in 2009 during the economic downturn.

 

Despite her background with Falasca and experience, Feldeisen alleged the company repeatedly passed over her for public and private projects when it sought plumbers through the union and hired less qualified male plumbers instead.

 

The state says Local 322 and Falasca have agreed to work together to increase recruitment and hiring of female plumbers. 

 

Factoids

• 62% of working retirees said staying mentally active was the most important reason, 31% said it was the money
• 72% of pre-retirees over age 50 say that their retirement will include working.
• 58% of retirees transition to a different line of work in retirement
• 83% of retirees feel that working keeps them more youthful
• 43% of retirees say they were successful at leaving their jobs at their target retirement age.

 

Quotes

"Don’t bother people for help without first trying to solve the problem yourself.”

~Colin Powell~