Long hours, changing conditions, and availability to handle issues are essential functions of a Les Schwab assistant manager.

Peter Atkinson was a long-term Les Schwab employee with a history of chronic migraine headaches. After being promoted to a position of assistant manager, which required a more demanding schedule, he began to miss work, take time off to sit in the break room, and leave before his shift was over because of migraine symptoms. At other times, he continued to work but in a “lesser capacity” because of discomfort. According to his supervisor, Atkinson’s performance and motivation because increasingly worse.

Atkinson wanted Les Schwab to reduce his hours down to 40 to 50 per week and to allow him to schedule consistent, uninterrupted breaks. Les Schwab did not reduce his hours or the scheduled breaks. Les Schwab contended that because of the fast pace and high sales volume, the hours and management team’s presence were essential job functions.

Les Schwab ultimately removed Atkinson from his position. He sued Les Schwab for, among other things, failure to provide him with a reasonable accommodation in violation of RCW 49.60.

The Court of Appeals dismissed his claim. Atkinson v. Les Schwab Tire Centers of Washington, Inc., No. 44326-1-II, 2014 WL 1746110 (April 29, 2014). An employer is not required to eliminate or modify the essential functions of a job. The Court concluded that Atkinson’s requested changes would have required just that. The Court noted:

But long hours, changing conditions, and availability to handle issues that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged more than 5 million dollars in sales annually. To handle this volume, there were nearly 30 employees and only 3 managers at any given time. The management team was expected to be at the location before the hourly employees and to stay later. The luxury of completely uninterrupted breaks was not available to managers as it may have been for others.

This case is another example of the limits on an employer’s obligation to provide accommodations. An employer can require employees, even those with disabilities, to perform essential job functions, with or without a reasonable accommodation. Atkinson, though, did not want an accommodation to enable him to perform essential job functions; rather, he wanted the essential functions altered. That goes beyond an employer’s obligations.

How can I fire a pregnant employee without getting sued?

You can’t.   OK, that’s an overstatement; there are times it might make sense, but it is always a high-risk move.

What is the most important factor in whether an ex-employee files a lawsuit against an employer? Anger? Feeling unfairly treated? Need for money? Those are all way up there. But I think the top reason lawsuits are filed is that the ex-employee consults with a lawyer.

When you fire a pregnant employee, she is going to tell her co-workers, spouse, girlfriend or boyfriend, mother, father, grandparents, cousins, brothers and sisters-in-law, neighbors, best friends, casual friends, Facebook friends, acquaintance at the dog park, gym . . . you get the picture. EVERYONE she talks to will say “They can’t do that!” and urge her to see a lawyer.

Although “everyone” is wrong about whether you can fire a pregnant employee, there are a lot of laws that come into play. Some laws require favorable treatment such as time off when the employee is sick or disabled because of the pregnancy. Some laws prohibit treating the pregnant employee differently because of the pregnancy. For example, you cannot discharge an employee because she is pregnant.

To make matters worse, if the soon-to-be mother files a lawsuit, she is likely to find an audience with a very sympathetic jury and judge.

The likelihood she will consult with a lawyer at everyone’s urging, the complexity of the applicable laws. and the fact she will be a sympathetic plaintiff combine to make discharge a high-risk move.

This does not mean an employer’s hands are tied. There are steps to reduce you can take to reduce the risk of litigation. You could some things like making sure (a) you are aware of all applicable laws regarding pregnant employees and have documented proof of compliance with all these laws; (c) you have documented proof that the pregnant employee understood your expectations; (d) you have documented proof she not meeting your expectations; (e) you have documented proof that you gave her a meaningful opportunity to improve and the necessary tools to do so; (f) you notified her in writing that failure to meet expectations would result in discharge; (g) you use progressive discipline; and (h) you have documented proof that similarly-situated non-pregnant employees have been treated the same way as the pregnant employee.

Your goal is to build such an air-tight case that even an opposing lawyer or sympathetic juror or judge looking at the evidence feels compelled to rule in your favor. You are also trying to treat her in a way that almost agrees with the discharge decision. You would like her to feel so comfortable with the result and the overall process that her inner voice telling her that she was treated well is loud enough to drown out the voices that tell her she must see a lawyer.

Even under the best situation, though, I think discharging a pregnant employee will always be a high-risk move for employers.

Get the employee’s side of the story in his or her own words

An employee’s version of events resulting in discharge often change significantly over time. One cause of this change is likely because the employee’s interests change. When an employer is addressing performance or conduct issues before discharge, the employee’s primary interest is usually working with the employer to remain employed. When an employee files a lawsuit or other claim following discharge, the employee’s primary interest is beating the adversary – the employer.

Getting employees to put their version of events into writing when their primary interest is remaining employed makes it more likely you will get an accurate and honest description. And it will make it difficult for the employee to change their version when they become the employer’s adversary.

For example, assume that John complains to you that a co-worker, Robert, angrily yelled at him with a barrage of profanity when John asked Robert if he needed assistance. And also assume that what John says is absolutely true. You want to talk to Robert about the incident to get his version of what happened.

At this point, Robert is likely to act in ways consistent with his primary interest of staying employed. Sure, he may deny yelling or swearing at John. But there is a high probability that he may admit to the alleged behavior and try to justify his actions or appeal to you to give him another chance. If, at this point, Robert writes down what happened in his own words, the employer has the best chance it will ever have of getting the accurate and honest description of events from Robert’s perspective. And whatever his motivation for admitting the alleged behavior, it is still an admission that he did what John alleged.

Once you discharge Robert and he files a charge of discrimination, lawsuit, or a claim for unemployment benefits, his interest changes. Rather than trying to persuade you that his actions did not warrant discharge, he now wants to win. He has a strong interest in a version of events in which he did not swear or yell at John.

I cannot overemphasize the value to an employer of an early narrative in the employee’s own words. One of the key issues in any discharge case is proving what actually happened and proving that the motivation for the discharge was not an unlawful one. Having a written statement from the employee admitting to the misconduct or poor performance can convince an employee’s lawyer not to file a claim or lawsuit against the employer or, if a claim or lawsuit is filed, make it much more likely the employer will prevail.

There are several ways to get this type of description in the employee’s own words. I think the best way is for the employee to handwrite a statement. You could also have the employee type up a statement in a document or email. With either of these approaches, it is a good idea to include appropriate language and signature so that the statement is made under oath. And if you are worried that the employee’s own version may miss relevant issues, you can always ask the employee to address specific questions from you.

Another approach is to type up a statement or make detailed notes while interviewing the employee and then have the employee sign under oath that the statement or notes are accurate and complete. I think these approaches are not as powerful as a statement in the employee’s own words, but these approaches are better than not getting anything in writing from the employee. If you do not have the employee put things in his or her own words, I recommend that you also give the employee an opportunity to review the notes or statement before signing, to add information to make the document complete, to ask questions, or to revise the statement.

Fire someone within the first 90 days

One way employers can avoid litigation is to fire poor performers before they have worked 90 days.

Most believe that after an employee works for certain length of time, typically 90 days, the company can’t fire the employee unless his or her performance is terrible (and the employer has first warned the employee) or the employee engages in gross misconduct like theft.

But this is not the law for most private employees. Washington, like most states, has “at-will” employment. Unless one of the limited exceptions to “at-will” employment applies, an employee can be fired without notice for any reason the employer thinks is good enough. One exception is when a collective bargaining agreement is in place. Another one is that an employee cannot be fired for race, age, sex, religion or other characteristic or activity expressly prohibited by a statute.

Lawsuits, though, are often less about the law and more about an employee wanting to remedy a perceived wrong. When someone has worked for an employer for a period of time, the employee develops a sense of job-entitlement. For whatever reason, maybe because union contracts have historically often incorporated a 90-day “probation period,” the ninetieth day has developed into a benchmark of sorts for when this job-entitlement belief really starts to take hold.

I have found that when the discharge of an employee is before the ninetieth day, the employee is much less likely to file a lawsuit, file a charge with a state or federal agency, or even to consult an attorney. On the other hand, the longer an employee is on the job after 90 days, the stronger the employee will develop a sense of job-entitlement and the greater the risk that the employee, when discharged, will file a lawsuit or take other action to remedy the perceived wrong.

When you have a new employee who is struggling with performance or conduct issues, if you do whatever is needed to resolve the issues or make a decision to discharge before 90 days has passed, you will reduce your risk of litigation. On the other hand, when deciding whether to fire long-term employees, recognize that the length of service, although legally irrelevant, affects the risk of litigation. It does not mean that you cannot fire the employee, but it may warrant more careful consideration about what steps you can take to mitigate the risk.

The Key to Easier Terminations

Terminations are never easy.  But I learned as a manager that one thing, giving the employee advance warning and an opportunity to improve, was one key to making terminations easier for me and for the employee.  As an employment lawyer, I have learned that the advance warning, and specifically a final written warning, coupled with the opportunity to improve goes a long way toward reducing the risk of litigation.

As a manager, I found that when I had not made my expectations and the consequences for failing to meet my expectations crystal clear to an employee, that employee was certain to be angry and to argue with me about the decision during a termination meeting.  In contrast, when I had previously made both my expectations and the potential consequences clear long before the termination meeting, the meeting was less likely to be hostile.  Usually, the employee still did not agree with the decision and was still upset.  But having a mutual understanding of my expectations and the consequences of failure, it was easier for me to communicate the decision and easier for the employee to accept my decision.

How much advance warning you give depends on the circumstances.  But, generally, enough time for the employee  to turn things around.   For something like punctuality, that could be as short as one day; for performance issues, it generally will be longer.

There are probably several reasons why advance warning eases the pain for the employee and supervisor.  No one likes to be fired.  But what makes it worse is the feeling of not having been given the chance to “fix” things to avoid the discharge.  Giving the employee advance warning and the opportunity to improve empowers the employee.

Supervisors are willing to give the employee an opportunity to improve; in fact, I think they often give too much opportunity.  But supervisors often fail give an effective advance warning.  For maximum effectiveness, this warning should be in writing.

Supervisors often are not honest about the consequences of non-improvement and, even when they are honest, the employee often does not hear the message.  A written warning helps avoid this failure to communicate.  When you have reached a point that failure to immediately improve will result in discharge, the employee needs to get that message, not a watered-down version.  Thus, the written warning should say something like “Failure to make immediate and sustained improvement in [area needing improvement] will result in your discharge.”   No pulled punches:  improve or get fired.

Supervisors are often reluctant to give such a warning for fear it will undermine the employee’s motivation to improve.   This fear is well-founded, but the problem can be overcome.  I learned that employees got less upset with me about a straight-forward threat of discharge when they still had time to turn things around than when they thought they had been fired out-of-the blue because they misunderstood the seriousness of the situation.

Another reason for the warning to be in writing is that it helps avoid litigation.  In litigation, witnesses often forget or lie about what actually happened.  Having the written warning goes a long way toward proving the employee was informed about his or her deficiencies and the consequences of failure to improve before the discharge.  Also, in discrimination and retaliation cases, the written warning is strong evidence of the employer’s legitimate non-discriminatory reason for the discharge.  (It’s also a good idea to have a the employee sign a copy of the warning to acknowledge receipt.)  Having strong documentary evidence supporting your case makes it less likely a plaintiff’s lawyer will take on a case against you.

Certainly there are circumstances when giving a prior warning and opportunity to improve is not possible.  But when it is, I recommend that you give it.

Have you found giving a final written warning made a termination easier for you or your employee?

Get the Whole Story

One of my favorite references to the Shirley Sherrod fiasco last week came from Peter Sagal, host of National Public Radio’s weekly radio broadcast “Wait, Wait, Don’t Tell Me.”  “Wait, Wait, Don’t Tell Me” is an entertaining quiz show based on the week’s news.   When Sagal was discussing  USDA Secretary Tom Vilsack’s firing of Sherrod based on his viewing a two-minute video segment from Sherrod’s  45-minute speech, Sagal quipped:

“This explains why Agriculture Secretary Tom Vilsack thinks that the Wizard of Oz is a black and white film about a farm girl in Kansas.”

Sagal’s comment made me think of some employers I’ve represented and the risks associated with firing someone without getting the employee’s side of the story.  First, the employer’s conclusions about what happened will often be wrong.  Second, if the employee later sues for discrimination or retaliation, the employer’s not getting the employee’s side of the story makes it look like the employer was acting out of a discriminatory or retaliatory motive.   The employee, now turned plaintiff, will argue that the employer did not get the employee’s side of the story because the truth did not matter — what was really motivating the discharge was the employee’s race, age, sex, protected activity, etc.

Employers getting the employee’s side of the story before taking any disciplinary action make better and safer decisions.