Archived News:

This article was originally published by the Wisconsin Chapter of the Associated Builders and Contractors in its May 2007 Merit Shop Talk newsletter.

Don't Be Too Quick To Pull The Trigger:  Disciplining Employees in Protected Classes

By Jim Pease

Some employers assume that if they have grounds to terminate an employee, that automatically makes it lawful and proper to discharge the employee.  An employer recently learned that isn’t true, particularly if the employee happens to be a salt or an employee in some other protected class.

About two weeks after an electrician was hired by a nonunion contractor, he showed up at work wearing a t-shirt that had the union logo and “Union Yes” on the front and “Ask me about my union,” the IBEW seal, a phone number and “family health care,” “fair retirement,” “higher wages,” and “job safety” on the back.  He wore that shirt to work every day, thereafter.

After the salt started wearing the union t-shirt, the employer reviewed the employee’s work experience in his application and asked the employee if he would be interested in a job as estimator or some other job in the office.  The employee declined, saying he could best serve the employer in the field.

Throughout this time, the employee was talking to the employees about the union and handing out CD-ROM/DVD disks outlining union wage rates.  Another employee claimed that the salt had given him the CD-ROM/DVD disk during working time in violation of the employer’s no solicitation rule that prohibited solicitation during working time.  The other employee signed an affidavit to that effect.  The salt claimed he gave the other employee the disk either before or after work.  When the salt persisted in denying he had given the other employee a disk on the job site during working time, the salt was fired for lying.  The employer later claimed the salt was a poor worker who spent more time smoking than working and that the employer had several additional reasons for which it could have terminated the salt, which, of course, the salt denied.

The employer’s human relations director, who didn’t talk to any of the witnesses, told the salt he was terminated before asking him any questions.  And, she refused to tell the salt who his accuser was.  Her conduct was inconsistent with prior sexual harassment investigations in which she had personally interviewed the witnesses and had always disclosed the identity of the accuser. 

The NLRB, based primarily on the fact that it believed the union’s witnesses and didn’t believe the employer’s witnesses, found that the employer was motivated by animosity towards the union.  That finding was based on the employer’s effort to move the salt out of the field and into an office job after he had worn the union t-shirt and on an anti-union policy the employer had placed in its employee handbook.  The Board relied on the fact that the human relations director treated the disciplinary investigation of the salt differently than other disciplinary investigations as establishing that the employer used the salt’s claimed dishonesty as an excuse or pretext for discharging the salt when the real reason for discharging him was that he was a union organizer.

The Court of Appeals refused to overturn the NLRB’s credibility findings that the salt was a more reliable witness than the employer’s witnesses, even though there were several examples of the salt not being a reliable witness.  The Court enforced the NLRB’s order that the employer reinstate the salt with full back pay.¹

The morale of the story is that, as a practical matter, when an employee is in a protected class, such as a union organizer or a minority or a woman or a person over 40 years old or with a disability, the employer has the burden of proving that it didn’t discriminate against the employee.  And, the employer can count on the fact that the employee will deny doing anything wrong, will claim to be the hardest working person on the crew, and will probably be given the benefit of the doubt by whatever decision maker hears the case.  Just because an employer has an affidavit saying an employee engaged in misconduct doesn’t mean the employee can be discharged lawfully.

So, employers should be sure to handle disciplinary situations involving employees in a protected class using the same procedures they use when employees who aren’t in a protected class are accused of misconduct, and to only impose discipline when the employer has a solid, provable case which will stand up if challenged, even if the employee, and the employee’s friends, don’t tell the truth about what happened.

Go to In The News

This page is intended to provide general information about various legal issues and developments.  It is not intended to be a complete list of all recent legal developments.  This page does not constitute legal advice and should not be relied upon in dealing with specific factual or legal matters.