The air was crisp and the skies clear during the latter half of November in the little town of Donot Pass in the foothills of the Rockies. The relatively small amount of snow blanketing the area lent a distinct Currier and Ives appearance to this burg of barely 900 residents. The delicate, white ground cover poses no problem for traffic because most folks here drive four-wheel vehicles and are able to navigate the neatly plowed streets and surrounding county roads easily this year. In the bright sun, the woods glisten. Every trunk, branch and twig is a photographic contrast in dark brown against bright white and a blue sky. This was perfect deer season in the high country, and the locals made the best of the situation.
Years ago, the local Acme plant conceded to the annual event and the inevitable rash of workers from every level in the hierarchy either taking their vacations or calling in sick at the end of the month. The plant essentially shuts down during the last week of deer season, a move that has cemented worker and contractor loyalty.
It was several years ago, too, that Acme began outsourcing its maintenance work because several of the old-timers, mechanics all, retired within a three-month period. Acme saw this as an opportunity to upgrade the function and, on a trial basis, partnered with Beta Co., an entrepreneurial start-up and nonunion shop. At the time, Beta was operating out of a ramshackle barn at the north edge of the county, a location chosen because the rent was dirt cheap.
Acme picked Beta because the company offered the predictive maintenance services that Acme executives learned about in the pages of this magazine. During the intervening years, Beta has been able to sustain the long-running Acme contract because its employees are better at what they do than one would expect from a group of good ol’ boys with little formal education.
A typical Beta employee is Dusty Rhoades, one of the first full-timers hired when the business started doing well. A handsome devil in his late 30s, Dusty has shown quite a talent for interpreting the output from the various sensors and readouts that Beta uses to monitor the health of Acme’s expensive process equipment. He’s also a smooth talker. It’s a strong suit that allows him to get along with anyone and the prime reason he’s been assigned to the Acme account from its inception. His smooth talking is also the prime reason for some degree of marital discord in the Rhoades household.
Dusty was thankful that he was so closely associated with the Acme plant. It meant that he also had the week off when the plant closed. At the end of the shift before the shutdown, Dusty and some Acme and Beta employees retired to a local gin mill to have a beer and talk trash about the great hunting they were going to see tomorrow at deer camp. One beer led to another, one story topping another, and pretty soon, the clock struck 10 p.m. Dusty knew he was going to be in trouble with Abby, his wife.
The scene that met him when he walked into his double-wide was right out of a comic strip. Abby stood there in her bathrobe and curlers, irate as the dickens, wielding a rolling pin and demanding an explanation for the late hour and the scent of strange perfume hanging in the air around Dusty. He pulled out his best glibness to deflect the accusations of marital infidelity, but his slurred words were insufficient for the purpose. The scene got ugly, the rolling pin got upgraded to a .22-caliber rifle, a device that, in the hands of a determined Abby, put several ragged holes in the seat of his pants as he bolted out the front door and down the driveway to his car in a vain attempt to escape the unbridled wrath so close at his heels.
His wounds where the sun doesn’t shine required extensive surgery and a few days in the intensive care unit at the local hospital. As soon as he was sufficiently coherent, Dusty contacted Beta’s HR department to tell them what happened and to say he wouldn’t be in for awhile.
Slow to heal and grateful for an excuse not to go home, Dusty spent much of the next month face down on his hospital bed. The day before Christmas, when he was to be discharged, he received a letter from Rob Burberrin, Acme’s Vice President of Outsourced Services, advising him that he’s been terminated. When Dusty contacted Wally Flowers, his supervisor at Beta, for an explanation, he was told that his termination is due, in part, to his being a victim of domestic violence.
As happens in most of the cases presented in these pages, Dusty sued both Acme and Beta for wrongful discharge, arguing that domestic violence is a pernicious social evil in the state and city in general and, in particular, the trailer park where he lives. He argued that being fired because he was a victim of domestic violence is inconsistent with public policy.
How could this situation have been avoided? Who should have the final decision concerning terminating contractor employees? What possible justification could there be for terminating someone who is on such good terms with a client?
An academician says:
Wow! This is a new one for me. I think we need a good attorney to sort this out.
Ignoring that advice, let me struggle with some of the issues. Dusty was probably eligible for 12 weeks of unpaid medical leave through the Family and Medical Leave Act (FMLA) to get the lead out of his bottom. All he had to do is notify his Beta HR rep after the accident, which he did. So, firing him in the middle of his leave could (I emphasize “could”) be a violation of FMLA, and if so, he has a good case.
But why did Acme fire him? He’s not an Acme employee; Beta is his employer. Beta would have been obligated to provide Acme with a replacement for him, so his absence would not leave Acme short-handed. If Acme didn’t want him, they should have told Beta to reassign him. And firing him for being a victim of domestic violence, now, that’s a first for me. Plus, he apparently was a good worker, so, why get rid of him? There’s something weird going on here.
My solution would have been for the Acme and Beta people to sit down and decide how best to handle this situation (including why he’s being fired). I’m sure Beta provided a replacement worker for him, so, his work at Acme is covered. I don’t think I would have fired him while he was on FMLA leave. If Acme doesn’t want him after the leave, let Beta figure out how best to handle that. It may be a little tricky as I think FMLA says that you can get your old job back. However, there are a couple of ways of fudging this, particularly for a contract worker.
Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
An attorney says:
Employers need to understand that when one company employs an employee and loans him to another company, both become joint employers of the employee, and both can be held liable for any violations of the law.
Depending on the jurisdiction in which Dusty works, he might have a viable claim against Beta and Acme for wrongful discharge in violation of public policy or a violation of a state law that protects victims of domestic violence. According to the Bureau of National Affairs, domestic violence costs United States employers $3 billion to $5 billion a year in lost time and productivity.
As a result of this monumental problem, an increasing number of states have passed legislation to protect victims of domestic violence. Some allow them to take leave to deal with the medical, psychological, legal or domestic effects of the violence, while protecting their jobs in the interim. If Dusty works in one of these states, Acme and Beta might have violated the state law designed to protect employees like Dusty.
In addition, in any state that protects victims of domestic violence, discharging an employee who is such a victim likely violates that state’s public policy. This would give Dusty a claim for wrongful discharge, essentially a claim that his employers discharged him for engaging in an activity that is protected by law.
If Dusty’s employers have a sufficient number of employees to be covered by the federal Family and Medical Leave Act and if Dusty has been employed long enough to be eligible for leave under that Act, his job is protected for up to 12 weeks while he is recovering from the wounds Abby inflicted.
What should these two companies have done to avoid this situation? An ounce of legal advice, for starters, would have avoided pounds of trouble. Both companies should have placed Dusty on leave until he was released to return to work, assuming that was no longer than the 12 weeks permitted by the Family and Medical Leave Act. For a company that is supposedly liberal enough to give the work force a week off for deer hunting, Acme was completely out of tune with current legal requirements on this one.
Julie Badel, partner
Epstein Becker & Green, P.C.
A corporate consultant says:
Jeez. What a story!
Domestic violence is indeed a tragedy, but business can’t come to a halt because of it. If Dusty isn't available, for whatever reason, it's appropriate for Acme to find another way to get the work done.
However, Burberrin was obviously wrong to have sent Dusty a termination letter. He should have voiced his concerns directly to Beta. Acme can certainly decide whether to continue doing business with Beta, but Acme can’t terminate Beta's employees. What was Burberrin thinking?
As for justifying the desire to replace Dusty, let's remember that being on good terms with a client isn't enough. There's more to a business relationship than chemistry and coffee! If Acme felt Dusty's personal problems made the company vulnerable to sudden or extended absences, it's appropriate for them to leverage that vulnerability by finding someone more reliable.
Dalton Alliances Inc.