Calling Your Students “Hoes” Can (And Should) Get You Fired

During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as “chaperones” but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted.  To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:

my girls acting like their self[sic] . . . hoes.

The photos were discovered and reported to the school and Ms. Kimble was suspended without pay.  After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment. 

Ms. Kimble challenged the termination.  An administrative law judge overturned the board’s decision to terminate her from her position as cook.  The board appealed and the circuit court affirmed the finding of the ALJ.  The board appealed to the state’s highest court, which reversed, siding with the board and finding the termination lawful. 

As the grounds for its opinion, the state’s Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip.  That was the easy part.

The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:

sitting in a hot tub surrounded, literally, by several topless female students.

The court also found that calling your minor students “hoes” also is relevant to the immorality question. 

Finally, the court rejected Ms. Kimble’s argument that she could not be disciplined for conduct that occurred off duty.  This argument is a favorite among plaintiff-employees everywhere but always a loser.  The conduct was within the scope of Ms. Kimble’s employment–she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them “hoes” on her MySpace page. 

The fact that she was not on duty at the time of these acts does not serve as a defense.  This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination.  When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful.  The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.

On the most basic level, it’s difficult to imagine that the parents of the female students would appreciate their daughters being called “hoes” by anyone but especially not by their cheerleading coach. 

Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).

Story of Delaware Medical Examiner Offers Lesson for Employers

Delaware Chief Medical Examiner Richard T. Callery has made news headlines for his off-duty conduct.  According to The News Journal, Callery is the subject of a criminal investigation relating to his testimony as an expert witness in cases outside of Delaware. 

In short, the claim is that Callery spent a lot of time serving as a paid witness in cases in other States, while neglecting his own duties.  And, to add insult to injury, Callery apparently testified on behalf of the defense in several cases, which, some argue, diminishes his credibility when called to testify in Delaware on behalf of the State.

The lesson to be learned for employers is an important one.  Many employers put limitations on moonlighting by employees.  Such limits may be included in an employment contract or in a personnel handbook. 

The policies vary.  For example, some employers prohibit employees from working in a second job altogether.  Others prohibit only secondary employment in the same field or with the same duties that the employee performs in his or her full-time employment.  And others only prohibit secondary employment that conflicts with the employee’s job duties. 

The State of Delaware, like many employers, does not have such a policy.  But, if it had, it would likely have prohibited Callery from working as an expert witness, even in his off-duty time.  Do you have such a policy?   Should you?

See ME’s side work under criminal investigation, by Jonathan Starkey and Sean O’Sullivan.

Lawful Discrimination and Off-Duty Conduct

Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can’t bear the thought of the decaf.

Is my coffee choice discriminatory? You bet. Is it unlawful? Good heaven, let’s hope not.

The same is true for the workplace. Employers can make employment decisions (i.e., discriminate), based on all sorts of things. Like who is the faster typist. Or who has the least number of dress-code violations. Choosing not to promote the employee who spends most mornings checking his Facebook account is discriminatory and it’s totally lawful.

Off-duty conduct is similar is many ways. In most states, including Delaware, private employers can make adverse employment decisions, including the decision to not hire, based on an employee’s or applicant’s off-duty conduct. The rules are different for public employers.

An example of employment discrimination based on off-duty conduct that seems raise a lot of eyebrows is discrimination based on smoking. Approximately 30 states have a “smokers’-rights” statute, which protects individuals who use tobacco from workplace discrimination. But Delaware is not one of those states. Thus, in Delaware, employers can decide not to hire (or employ) any individual who smokes or uses tobacco.

Pennsylvania is another state without a smokers’-rights statute. Which is why the University of Pennsylvania Medical System’s announcement that it will no longer hire smokers did not come as a big surprise. The Hospital of the University of Pennsylvania announced that it will permit current employees to continue to use tobacco–although those employees already pay a “smoker’s surcharge”–an extra charge added to the employee’s health-insurance payments.

New employees, however, will have to be tobacco free for 6 months in order to qualify for a position. And new employees, including doctors, who are found to have lied about their tobacco use may be terminated.

But not all new employees. Applicants for the Hospital’s facilities in New Jersey get a pass because that state has a smokers’-rights statute.

Much to the Hospital’s credit, it has published a great deal of information about the policy on its website.

Related Posts:

Bans on Smokers In the Workplace Continue
Health vs. Privacy: Employers Continue to Juggle Both
How Far Should Employers Go When It Comes to Employees’ Health?
Not Everyone Is Fired Up About Smoking Ban
Employer Quits Its Smoking-Penalty Policy
Smokers’ Rights in the Employment Context

Fighting Back: Bullies and Obesity

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is.

Take, for example, Jennifer Livingston, a TV news anchor in LaCrosse, Wisconsin. A viewer with, apparently, way too much time on his hands, took it upon himself to write Ms. Livingston a note to express his displeasure with her weight. “Obesity is one of the worst choices a person can make and one of the most dangerous habits to maintain,” wrote the viewer. “I leave you this note hoping that you’ll reconsider your responsibility as a local public personality to present and promote a healthy lifestyle.”

I think it’s fair to say that Ms. Livingston didn’t find the viewer’s “concern” all that heartwarming. Heck, it may have even hurt her feelings. But, instead of hiding her pain, she elected to take a different approach and responded to the comments on the air. Her response took the form of an articulate call to arms in which she accused the viewer of being a bully.

I think the story is inspiring for a number of reasons but it also highlights a few different current issues in employment law.

First, there’s the continuing discussion surrounding bullies in the workplace or, as I like to call them, “jerks at work.” Legislation has been introduced in numerous states over the past five or so years that would, in short, make it unlawful to be a jerk at work. I think there are obvious problems with trying to legislate “jerkiness” but I also recognize the high costs that jerks can have on workforce morale, creativity, and overall productivity. This post at Above the Law provides a recent summary of the various legislative efforts.

Second, there’s the as-yet-unresolved question of whether obesity is a disability under the Americans With Disabilities Act (ADA). Historically, courts have been unwilling to include obesity as a protected disability. With this precedent in mind, some employers have refused to hire applicants who are obese and charge higher health-care premiums for overweight employees. But the EEOC has said that the ADA does protect individuals who are morbidly obese. A case filed last year by the EEOC asserting that “severe” obesity was a protected disability under the ADA, recently resulted in a $55,000 settlement for the employee. And a recent decision by the Montana Supreme Court seems to further support that the trend has shifted towards protecting obesity as a disability.

Bans on Smokers in the Workplace Continues

“More job-seekers are facing an added requirement: no smoking — at work or anytime.” That is the opening line of an article on USA Today’s Money website. I will defer to the news organization and the author of the piece but, to be frank, I have doubts about the objective veracity of that statement. I am certain, however, that this story is not a new one.

In October of last year, for example, we noted that Texas’ Baylor Health Care System had elected to implement a ban hiring smokers. This does support the USA Today’s claim that health-care employers are leading the way in this trend. We also wrote about this trend nearly a year ago in February of 2011 in a post, called Health-Care Employers Who Don’t Hire Smokers, in which we discussed a similar article in the New York Times.

The underlying question in these and similar articles is whether it is a good idea for employers to discriminate against individuals who use tobacco. Without coming out and saying so, both articles seem to conclude that the answer to this question is “yes.” As you can read in my previous posts, I tend to be less convinced. Primarily, my concerns are as follows:

1. I don’t believe that the best way to address productivity is through a ban on employing smokers. The better way to handle this is through better management. Simply implement a ban on workday smoke breaks; and

2. Tobacco use is a legal activity (at least for now). There are countless other legal activities that endanger the health of employees–obesity in particular. However, it would be a tremendously bad PR move to stop hiring the morbidly obese. We can refuse hiring smokers because smokers are an unpopular group in today’s society. Being a defense lawyer, I hesitate to endorse what can seem like picking on an already marginalized group.

That being said, I also recognize that health and wellness are good things. And I would readily support an employer whose real objective is to give its workforce the tools to lead healthier and, in turn, more productive lives. I just tend to think that this should not be limited to bans on smokers.

See also:
Health vs. Privacy: Employers Continue to Juggle Both;
How Far Should Employers Go When It Comes to Employees’ Health?;
Not Everyone Is Fired Up About Smoking Ban;
Employer Quits Its Smoking-Penalty Policy;
A Whirlpool of Excitement about Rights of Employees Who Smoke

Smokers’ Rights in the Employment Context

Can employers refuse to hire applicants for their tobacco use? In most states, the answer is “yes.” Unless the candidate is applying for a job in a State with a “smokers’-rights statute,” an employer can refuse to hire candidates who smoke.

According to the Texas Employment Law Update, that’s exactly what one of North Texas’ largest employers has announced it will do. Baylor Health Care Systems announced that it will not hire or consider for hire any candidate who uses any nicotine product. This is additional evidence of a continuing trend in health care.

Hair Today, Gone Tomorrow

A new opinion from the Delaware Superior Court sheds light on when off-duty conduct justifies an employee’s termination for purposes of denying unemployment benefits. Because Delaware is an at-will state, it is well established that an employer may terminate an employee for off-duty conduct. However, an employer must have “just cause” for termination in order to avoid payment of unemployment benefits. The Superior Court’s opinion clarifies that an employee’s off-duty conduct must have a non-speculative impact on the employer’s business in order to constitute “just cause” for termination.

A Hairy Situation

The case of Michael Christopher Designs v. Willey (PDF) revolves around the termination of a receptionist at the Michael Christopher Salon (the “Salon”). The Court’s recitation of facts indicates that the receptionist, Nicole Willey, engaged in a “heated and profane” argument with one of her co-workers, Dottie. The argument occurred during non-work hours, via text message, and stemmed from an incident where the Salon management had confronted the women about alleged sharing of prescription medication with another employee. The two employees then exchanged a string of profane and aggressive comments going in both directions, but Willey’s text messages included threatening language, such as “Hope u aint at work 2mor. Ur gonna b sorry.”

Following the employees’ heated exchange, Dottie went to work and shared select text messages with her supervisor, John Przbylski. Mr. Przbylski then shared the messages with his supervisor, Betty Armstrong. Both Mr. Przbylski and Ms. Armstrong spoke with Willey and Dottie, and then terminated Willey’s employment. Willey subsequently filed for unemployment benefits.

A claim for unemployment benefits receives several levels of administrative review by the Delaware Department of Labor, before it is reviewed by a Court. Benefits will be denied only if an employer had “just cause” for its decision to terminate an employee. Just cause may exist where an employee engages in “a willful or wanton act in violation of the employer’s interest.”

Willey’s claim was reviewed first by a Claims Deputy, and later by an Appeals Referee, both of whom denied benefits. The Appeals Referee found that the Salon had terminated Willey for just case, arising out of her frequent tardiness and harassment of other employees via text message. Willey then appealed to the Unemployment Insurance Appeals Board (the “UIAB”). The UIAB reviewed the evidence, and concluded that the Salon did not have just cause, because it did not present sufficient evidence to show that Willey’s conduct had an actual detrimental impact on any of its interests as an employer. The salon appealed the UIAB’s decision to the Superior Court.

Hair Me Out

In its appeal, the Salon raised several issues, including whether there was a sufficient nexus between Willey’s off-duty conduct and her workplace performance. In analyzing whether Willey’s conduct was sufficiently detrimental to the Salon to constitute just cause for termination, the Court considered several factors.

First, the Court noted that neither Mr. Przbylski nor Ms. Armstrong found Willey’s text messages to be so threatening that they called the police, or undertook any measures to keep her out of the Salon. Consequently, the Court concluded that the threats had not impacted the employer in a substantive way.

Second, the Court considered past practice. Willey testified before the UIAB that the Salon had a general policy of allowing employees to work their differences out without resorting to supervisors. Willey bolstered her position by emphasizing that she and Dottie had engaged in a previous off-duty argument, several months before her termination. In that case, the employees resolved their dispute the next day at work, and were able to continue working together successfully. The Court emphasized that there was no reason to doubt that the same outcome would result after this argument. Importantly, the text-message argument “took place outside of work, and had yet to manifest itself within the workplace or effect job performance.”

Bottom Line

While Delaware employers may terminate their employees for off-duty conduct, they may still be liable for unemployment benefits if the off-duty conduct does not have a sufficient nexus to the employee’s workplace performance. Employers should think twice before they wade into employees’ petty squabbles. In order to avoid finding themselves on the hook for unemployment benefits, employers should consider whether an employee’s off-duty conduct has any actual impact on the employer’s business interests.