Friday, May 13, 2016

Risk managers: time to add that no butt slapping rule

What happens when an employee does something wrong, gets fired for misconduct, and then turns around and tries to collect unemployment benefits?

This is a common thorn in the side of many employers why misconduct might be good enough to fire someone but not misconduct-y enough to keep them from getting unemployment.

Take for example, the  story of  Stahl, a woman who worked at Hank's Cheesecake.  A co-worker comes along, makes a vulgar comment to another employee.  Stahl, not finding any of it funny, turns around and backhands the co-worker in the buttocks.  There is some dispute whether this was done with the back of a pan or the back of a hand.  It is uncontroverted that it was not a love tap.

Stahl is then fired the next day.

Stahl files for unemployment benefits.

Unemployment benefits are granted. Hank's appeals to the Labor Commission.  Hank's loses the appeal.  Hank's tries again this time with the court of appeals, and loses again.

Hank's states there was sufficient evidence to show that Stahl engaged in misconduct in a fit of anger when she hit another employee.   It is the burden of the employer to show misconduct to disqualify an applicant from benefits. 

In its examination of the totality of the circumstances, the court noted that Hank's did not have rule against physical conduct so Hank's could not point to a "rule" that the employee broke.  Hank's argued that the action clearly violated the company standards which reflected a zero tolerance for unwanted contact between co-employees  The court deferred to the finding of the labor commission that the employer failed to show intentional violation of the rule because claimant's action  occurred without intent in the heat of the moment.   In short, what the court is saying is that an employer cannot expect its employees not to hit each other as long as their rage is 'blind.'   There is no clear intent to violate a policy of work place violence unless it rises to the level of intensity or roughness to reasonable expect that it would violate the employer's policy.  After all, the applicant didn't even use a fist. 

The case is very similar to the rationale by the commission to allow comp benefits from a first offender without a "intent" to cause serious harm.   Reis v Shade Tree Service, 2013 MO WCLR Lexis 187.

The dissent asserts there is conduct that is universally expected even if they are not written down, and intentionally slapping a co-worker on the buttocks crosses the line.  The employer does not have to prove wanton and willful acts to establish disqualification of benefits.  Judge Page suggested a double standard was applied.

Stahl v Hank's Cheesecake, 489 S.W.3d 338 (Mo. App. 2016) 

Practice pointer:  Employers should clearly delineate when butt slapping is inappropriate. Green Eggs and Ham is a good template:  'Job applicant agrees butt slapping violates company policy and core values and  heretofore there shall be no butt slapping: not in a train, not in a tree, not in box, not with a fox, not in a house and a mouse, nor here, or there or anywhere.'