Last fall, Howard Weyers, owner of Weyco, an insurance consulting firm near Lansing, Mich., came under fire for terminating the employment of two model employees who smoked outside the workplace.
Giving his staff 15 months’ notice, he unapologetically implemented a no-tolerance company policy last January 1 that called for the immediate dismissal of employees with nicotine in their body.
Because Michigan, like Mississippi, is an employment-at-will state, the move was legal, right?
‘Very peculiar state statues’
“Companies believe they can lawfully refuse to hire or discharge employees who smoke in Mississippi because it’s an employment-at-will state,” said Bert Ehrhardt, managing partner of Lewis Fisher Henderson Claxton & Mulroy, LLP, in Jackson. “I have represented employers in labor and employment litigation now for close to 30 years, and there are some very peculiar state statutes in several of our 50 states.
“In Mississippi, buried in the provisions of the state ‘drug testing’ statute is the following provision: It shall be unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours.”
This statute makes it unlawful to refuse to hire or to discharge employees in Mississippi for off-duty tobacco use, including the smoking of cigarettes or other lawful tobacco products, Ehrhardt pointed out, adding that Mississippi also has two judicially-created exceptions to the employment at will doctrine.
“Many people believe that because we have employment-at-will, anybody can be terminated at any time and there’s no potential liability,” he said. “That’s not true. Employees can file suit under Title VII of the Civil Rights Act for race, sex, age, religious beliefs, national origin, discrimination, disability discrimination under the Americans with Disabilities Act (ADA) and so forth. Most people sue for alleged discrimination, failure to accommodate religious observance needs or a disability, sexual harassment and exceptions to the employment-at-will rule. Religious and disability claims are the most difficult to prevail on, if you’re looking at it from a plaintiff’s point of view.”
For those reasons, Ehrhardt recommended employers review their hiring and discipline practices on a regular basis, such as the first of the year.
“Reviewing hiring and discipline practices go hand in hand,” he said. “Without both, you don’t have a full program. You can have an excellent hiring system, make excellent choices, but no matter the industry, inevitably bad apples will slip through the cracks as certainly as death and taxes.”
Review the application process
• Make sure your employment application lists all prior employers. “Not some, but all of them,” said Ehrhardt. “Match the dates against references. If there are unexplainable gaps in the employment record, don’t hire the person. Gaps generally indicate something was wrong with a particular job the applicant didn’t list, and perhaps tried to stretch dates on either side to cover the gap.”
• Require the applicant to state a reason for leaving each employer, and indicate whether he was disciplined or counseled regarding performance, attendance or safety. “Any excessive movement or lack of stability would indicate this person is not a good employee,” he said. “If the applicant puts down as a reason for leaving either personality dispute or disagreement with a supervisor, then there’s a good chance this person is not someone you’d want to hire.”
• Include the question: Have you been convicted of any crime? “This may or may not be relevant, depending on the job duties, but it’s definitely something you need to know,” he said.
“These questions can also serve as defenses to claims later on,” said Ehrhardt. “We found that more than 80% of all plaintiffs who have sued employers have falsified their applications in one way or another.”
Concerning health habits, the ADA and its implementing regulations strictly prohibit pre-employment medical inquiries.
“Even asking an employee after you hire them — ‘Do you smoke?’ — would not be proper under those statutes,” said Ehrhardt. “If you later terminate the person, he could say it’s because he smoked. Why else did you ask that question? It opens the door for them to say, ‘You regarded me as a disabled person under the ADA.’”
Document, document, document
Every few years, take a hard look at the company handbook, and make sure a discipline program and complaint resolution procedure is in place.
• Document poor performance involving employees, new hires or probationary workers. Take action based on documented poor performance. “Bad performance not documented sets the benchmark,” cautioned Ehrhardt. “Most people just don’t like confrontation. It’s easier to hope a problem will go away.”
• Supervisors must be trained how to correctly document poor performance. “It’s not how thick the pile of documents is, but how you go about documenting poor performance,” he said. “The annual review process is an extraordinary tool, but it’s frequently misused. So often, I’ll hear about an employee with poor performance, but then I’ll read an annual review that shows where this employee received fair marks — and a pay raise!”
• Limit complaint procedures to two groups or two people, such as the human resources director and the human resource director’s supervisor.
• Act on complaints. “There are many defenses to federal and state claims if you have proper provisions in your handbook, including complaint procedures,” said Ehrhardt.
“If an employee doesn’t use a written complaint procedure and later sues, but could have avoided the problem because of an established complaint procedure, the lawsuit may be barred. There’s no reason not to have a good complaint procedure.”
Contact MBJ contributing writer Lynne W. Jeter at email@example.com.
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