Wrongful Termination

Lying about Reasons for Separation – Don’t Do It

It’s a common dilemma for employers – what do you say to your staff to explain the sudden departure of an employee terminated for poor performance?

Tell the truth about why the employee was fired, and it can be seen as defamation, an invasion of privacy, or simply mean-spirited.

Say nothing, and co-workers may assume the worst or lose trust in the company.

So . . . what about saying it was the employee’s decision to leave, even if it wasn’t?

Well, that last explanation would be a lie – and courts may interpret such lying as a pretextual cover-up for discrimination.  That seems to be the lesson of McMullin v. Evangelical Services for the Aging T/D/B/A Wesley Enhanced Living, decided last month by Judge Savage of the U.S. District Court in Philadelphia.  In that case, the former CFO of Wesley Enhanced Living, Edward McMullin, sued for age discrimination and disability discrimination after his termination of employment at age 64 – one year after his hire.

Wesley argued that it terminated McMullin due to poor performance, including errors in financial reports.  McMullin claimed instead that the termination was because of his age and because he was perceived as disabled.  He had disclosed a chronic heart condition to his boss, CEO Jeff Petty, and McMullin also claimed that Petty had made comments about “making employees feel unwelcome so that they were encouraged to leave” when the employees were perceived as presenting a risk of costly workers’ comp claims or health insurance claims.

For Judge Savage, the decisive factor in allowing the claim to go forward to trial was that Petty sent an email to staff after McMullin’s termination announcing that McMullin “has decided to leave WEL effectively [sic] immediately.”  Stated the court, “Petty’s public explanation at the time of McMullin’s departure did not square with the reason he gave in this litigation for McMullin’s leaving.  McMullin claims that Petty misrepresented his termination to Wesley employees to conceal that he was fired for a discriminatory reason. . . A jury could infer discrimination if it concludes that Wesley’s explanation for terminating McMullin is not credible.”

In other words, Petty telling the staff that McMullin left voluntarily contradicted Petty’s later claim that McMullin was fired for poor performance, and based on that contradiction, a jury could conclude that Petty was covering up for unlawful discrimination.  Of course, Petty and Wesley likely would contend they announced that McMullin’s departure was voluntary so that he could “save face” and not be publicly embarrassed by his for-cause termination, but such a rationale apparently did not make it into the record.

Whether you agree with this decision or not, the lesson is simple – be very careful about statements relating to the reason for separation of an employee.  In our experience, these communications often make the difference as to whether an employer is sued or not sued for a termination.  Better to be vague and treat it as a private personnel matter, than to be dishonest. A simple statement that XYZ will be leaving the company effective October 1 will often suffice.  And if the employee wishes to treat it as a resignation to save face, ensure the parties sign a written agreement to do so.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Wrongful Termination

Forced Overtime Creates Wrongful Termination Claim for Pa. Healthcare Worker

The presumption of employment at will is “extremely strong” in Pennsylvania, and courts are reluctant to recognize exceptions where an employee may claim “wrongful termination.”  But the Pennsylvania Superior Court opened the door a crack this month by holding that a health care worker who was terminated for opposing mandatory overtime had a claim for wrongful termination, even though future claimants might not.

The Pennsylvania Statute on the Prohibition of Excessive Overtime in Health Care (aka “Act 102”) took effect in 2009 and provides that certain health care facilities cannot require certain employees to work in excess of an agreed, predetermined and regularly scheduled daily work shift.  Act 102 covers hourly and non-supervisory employees who provide direct patient care or clinical care.  The law also prohibits retaliation against an employee who objects to or opposes unlawful overtime.

In Roman v. McGuire Memorial, decided November 9, the Superior Court affirmed a trial court’s decision that Brandy Roman, a “direct care worker” at a residential care home for the mentally retarded, could make out a claim of wrongful termination in violation of public policy. She refused mandatory overtime on four days in 2011, and was fired as a result.  The court noted that Act 102 provides a clear statement of public policy, prohibiting covered employers from retaliating against employees for opposing mandatory overtime.  The employer, McGuire Memorial, argued that since Act 102 included provisions to create regulations to cover claims under the law, Ms. Roman and others like her could not bring a common law claim for wrongful termination.  But the court rejected that argument, noting that until the Department of Labor implemented final regulations on July 9, 2014, aggrieved workers like Ms. Roman had no way to vindicate their rights (other than through a wrongful termination suit).  Since Ms. Roman filed her suit prior to the effective date of the regulations, she had a viable wrongful termination claim, the court held.

So where do future claims under Act 102 stand, now that the final regulations have been implemented?  The new regulations do not state that they provide an “exclusive” remedy for violations, but state court precedents suggest that, if grievants have an avenue of relief under the statute, then wrongful termination claims might no longer be viable.

Regardless of whether Roman v. McGuire Memorial turns out to be a significant exception to the employment at-will doctrine, covered health care employers in Pennsylvania should take heed that (1) they cannot mandate overtime for healthcare employees and (2) they cannot retaliate against those who refuse to accept overtime assignments. Like most laws, Act 102 has numerous exceptions and limiting definitions, and employers therefore should review its requirements carefully to ensure that their overtime policies and practices do not violate the law.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.