For those of you who like country music, many of my recent blogs have skewed in that direction. If you are not a fan of the genre, sorry. It’s just that the lyrics often fit so well when it’s time to write about employment law.
This time we’ll look to the Brad Paisley song “I’ll Take You Back” (track four on his 2004 album Time Well Wasted). The lyrics are worth a read even if you don’t want to listen to the song, as there are some cultural references that ring true today.
The connection? Recent reporting from Bloomberg Law suggests unions are now winning more arbitrations that involve employee discharges than they have in a while. To be sure, the number is not overwhelming – it’s about 27% – but that’s up from the low point of about 15% in 2020 and 2021. And what happens when an arbitrator finds for the union/employee? The employer has to take the employee back (reinstatement), either with or without backpay as the arbitrator deems appropriate. Hence “I’ll take you back.”
Now, Bloomberg also reported that the pre-pandemic results were closer to what they are now, at 26% in 2019. The devil is in the details, of course. There are all sorts of unanswered questions here that can be explored another time.
Instead, I want to focus on what employers can do to best position themselves to have an arbitrator uphold an employee termination (and this applies to both the unionized workforce where a collective bargaining agreement is involved and for those companies with arbitration agreements with non-unionized workers).
First, understand that any arbitrator will be looking for “just cause” in a union case. It’s possible that a non-union employer may have an “at-will” advantage, but the arbitrator will still be looking for fundamental fairness.
The long settled “seven rules of just cause” (an employer bears the burden of proof here) are (1) a reasonable rule; (2) employee notice of the rule; (3) a sufficient investigation; (4) a fair investigation; (5) evidence tying the employee to the infraction; (6) non-discriminatory treatment; and (7) an appropriate penalty for the infraction.
Second, avoid unintended consequences and self-inflicted wounds. Employers confronted with employee misconduct should investigate the allegations and have contemporaneous documentation of what was done – consistent with the requirements of just cause – to convince an arbitrator that discharge was appropriate. A well-documented – and truthful – story that is told when the employer gets to arbitration many months later will help avoid the possibility of faded memories and inconsistent testimony.
Third, recognize the difference between “performance” issues and “rule violations.” Performance problems may require counseling and a performance improvement plan. For violations of work rules (unless it’s one of the “deadly sins” like theft, assault, harassment, etc.) the ability to show there was at least some progressive discipline prior to discharge is always helpful.
Finally, be sensitive to the issue of treating people similarly in similar situations. A historical review of discipline over the past couple of years, and then following that road, will help minimize a claim of discriminatory treatment if one is alleged later.
The take-away here? Although we’ve been discussing arbitration, the rules are the same regardless of the forum. “Ready, fire, aim” is never a good approach. The better prepared an employer is before making a termination decision, the more likely that decision will be affirmed by some third party reviewing it at a later date.