An employer’s desire to quickly fire an employee can drag it into violating labor laws. Recently, the firing of an employee for misusing 20 minutes of family medical leave led to conclusions that the firing was retaliation for union activity.
The U.S. Court of Appeals for the District of Columbia decided to uphold an NLRB decision that Bally’s Park Place committed unfair labor practices in Bally’s Park Place, Inc. v. N.L.R.B. (D.C. Cir., Aug. 5, 2011))
The case highlights the need for employers to have well-constructed and consistently-applied leave and discipline policies for employees, and to be mindful of workers’ union organizing rights. In this case, Bally’s summarily fired the employee even though his infraction was minor, and the company probably should have used the four-stage progressive disciplinary policy that was on its books.
Unfair Labor Practices Alleged
Jose Justiniano was a table dealer for Bally’s Casino in Atlantic City, N.J., when the United Auto Workers launched a campaign to organize casino workers in 2006. Justiniano attended union meetings, became a supporter and signed an authorization card. He also spoke with other employees about the need for a union, mailed literature and appeared in a promotional video.
On several occasions, Justiniano was spoken to and disciplined by supervisors who told him he could not speak about the union on the casino floor.
At the end of March 2007, Justiniano was scheduled to work the noon-to-8 shift. The night before, his daughter’s mother asked him to take care of their asthmatic child, who needed treatment every four hours. He had previously taken FMLA leave for his daughter without incident. He called Bally’s in the morning to arrange leave; he called a bit later to confirm.
Later that morning, Justiniano attended a union rally at another casino. The rally ended shortly after noon, and Justiniano went home to care for his daughter. However, he was observed at the rally by a Bally’s manager, who informed an executive. A couple weeks later, Justiniano was fired for violating a work rule stating “that employees will be honest and forthcoming in all communication.”
The UAW filed unfair labor practice charges against Bally’s. The NLRB issued a complaint alleging that Bally’s violated the National Labor Relations Act by interfering with, discriminating against and terminating Justiniano for his union activities. An administrative law judge agreed that Bally’s was out of line to bar Justiniano from discussing union activities on the casino floor but concluded his firing was justified under the company’s zero tolerance policy for employees found abusing FMLA leave.
No Written ‘Zero-tolerance’ Policy
The U.S. Court of Appeals said Bally had no written zero-tolerance policy. The absence of such a policy undercut its argument that it was following a rule it had made known to and enforced upon its employees.
What ‘Progressive Discipline?’
Far from a zero-tolerance rule for misusing leave, the company had a four-step progressive discipline structure for most infractions: (1) Documented Coaching; (2) Written Warning; (3) Final Warning; and (4) Termination. Yes, summarily firing somebody is necessary sometimes, but for mischaracterizing 20 minutes of leave? The court said “no.”
Did Punishment Fit Crime?
Though Bally’s cited nine cases in which employees were discharged for misusing family and medical leave time, the court found none in which the worker – like Justiniano – was fired for taking only a few minutes for non-leave-related activities.
The court deferred to the NLRB’s interpretation of events and supported the board’s conclusion that his termination was unlawful.