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Timing is Everything for Employee Discipline

A Carl’s Jr. franchisee in Texas is learning the hard way that timing can be everything when disciplining or terminating employees.  Cathy Terry, a store manager, was fired only two days after she was robbed at gunpoint in the restaurant.  As the gunman held a gun to her neck and ordered her to take money from the safe, he asked, “Do you want to die for Carl’s Jr.?”  Terry opened the safe.

Two days later, Terry was fired.  At first, the company would not explain the reason for the termination, leading to a storm of bad publicity.  Later, the company explained Terry was scheduled to be fired the day of the robbery because of a history of problems, including removing hours from employee time cards to save on overtime costs.

How can situations like this be avoided?  While we do not know enough facts about Terry’s history with the company to know whether it would have helped in this case, employers need to act swiftly with respect to disciplinary action.  We receive many calls from employers who were just about to fire an employee, but before the termination is carried out, the employee announces she is pregnant or goes out on medical leave or announces he needs a workplace accommodation for a disability.  Even if the employer’s reason for discipline is legitimate, the risk of a lawsuit increases dramatically when it occurs in close proximity to such an event.  Moreover, a jury may question why that history of poor performance was bad enough to necessitate discharge, but not bad enough to make the company act sooner.  Even if a lawsuit is not filed, the employer may face unwanted publicity.

What about a scenario where there is no delay?  In a situation like the one at Carl’s Jr., in which the facts are extremely sympathetic to the employee, employers need to balance the employee’s violation against the severity of the upsetting event.  If the company could not have acted sooner to avoid this situation, it could consider whether there are alternatives to discharge.  A good rule of thumb is to impose discipline one level below what might otherwise be appropriate if the unique facts seem to guarantee a thunderstorm of bad publicity.  For example, instead of terminating an employee, a final warning may be sufficient.

However, there are some situations where lesser discipline would not be adequate because the employee’s infraction is too severe.  In these cases, the employer should prepare for the backlash.  A more generous severance package, for example, may be justified even where the underlying incident would normally not justify such generosity.

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.