Burk v. K-Mart Corp. (1989)

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3 Burk v. K-Mart Corp. (1989) Narrow exception to the at-will employment doctrine when fired in violation of clear public policy Since public policy is so vague, must be tightly circumscribed Must be based on clear constitution, statute, or decisional law 5/10/2017 3

4 Vasek v. Noble County (2008) Actual or constructive discharge At-will employee In significant part for a reason that violates an Oklahoma public policy In OK constitution, statute, or case law or fed const. prescribing a norm for OK No adequate statutory remedy 5/10/2017 4

5 Silver v. Sherwood Manor (2004) Nursing home cook fired for going to ER with flu symptoms stated viable Burk tort OK public health statutes express policy regarding food handling Nursing home's alleged failure to follow this policy stated a Burk tort claim Avoided question whether public health regulations could support a Burk claim 5/10/2017 5

6 Moore v. Warr Acres (2016) ISSUE: Whether firing a nurse for missing work due to the flu violates public policy HELD: Yes Oklahoma and federal regs prohibit nurses from working with communicable diseases and flu RATIONALE: Protect vulnerable patients EFFECT: Expanded Burk tort to include alleged violations of state and federal regs 5/10/2017 6

7 Moore v. Warr Acres (2016) Now What? Update your termination review checklist! Avoid creating an inference that the discharge decision is motivated in significant part by an employee s Refusal to violate public policy, or Compliance with public policy In an Oklahoma or federal regulation 5/10/2017 7

8 Refusing to Violate Policy Todd, 1989 OK 121 Trucker allegedly fired for refusal to operate motor vehicles with defective brakes, headlights and turn signals in violation of 47 O.S , Stated viable Burk claim for refusing to act in violation of clear statutory mandate 5/10/2017 8

9 Complying with Public Policy Vasek, 2008 OK 35 Deputy court clerk allegedly fired for reporting moldy/sewer smell to ODOL after office flooded several times Stated viable Burk whistleblower retaliation claim based on Oklahoma Occupational Health and Safety Standards Act (40 O.S ) 5/10/2017 9

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11 TRAINING 5/10/

12 LANDMINE ISSUES Discrimination, Harassment, Retaliation Title VII, Civil Rights Act of 1964 Race, Color, Sex (Pregnancy, Family Duties, LGBT-feds), Religion & National Origin Section 1981, Civil Rights Act of 1866 Race, Color & National Origin (in contracts) Americans with Disabilities Act Age Discrimination in Employment Act

13 LANDMINE ISSUES Discrimination, Harassment, Retaliation Equal Pay Act (gender pay equality) Genetic Information Non-Discrimination Act (GINA) ( family medical history ) Uniformed Services Employment and Re-employment Rights Act (USERRA) Past, current, or prospective military service Association Discrimination

14 LANDMINE ISSUES Discrimination, Harassment, Retaliation National Labor Relations Act Supporting/Opposing a Union, Organizing Unfair Labor Practices Oklahoma Laws Firing US citizen while employing illegal alien Smoke or use tobacco products (or not) Employees subject to garnishment

15 LANDMINE ISSUES Protected Leave & Retaliation ADA Family Medical Leave Act Pregnancy Related Leave USERRA (Military Leave) Workers Compensation

16 LANDMINE ISSUES Whistleblower Protections (Retaliation) Dodd-Frank Wall Street Reform and Consumer Protection Act Sarbanes-Oxley Act Fair Labor Standards Act Occupational Safety and Health Act Any other regulation!! Burk tort claim

17 HEART OF THE MATTER

18 HEART OF THE MATTER

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22 MANAGING PERFORMANCE

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24 EVALUATE Impartially (unbiased) Consistently (reliably) Candidly (honestly) Timely (promptly)

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26 John Maxwell, How Successful People Lead Values the person Values potential Establishes relationship Expands relationship Defines relationship Directs relationship

27 Record the key facts Expectations Performance Policy Violations Coaching Counseling Warnings Discipline

28 Review the Records Unnecessary personal comments? Unsubstantiated overstatements? Acting on speculation or assumption? Emotionally charged language? Incomplete, incorrect, or inconsistent? Bias, prejudice, or favoritism? Conflict of interest or ulterior motive? Refers to protected class or activity?

29 DOCUMENTS COMMUNICATE?

30 Evaluate carefully before you terminate Coordinate with Senior Management, HR, and Legal Counsel Calculate the costs and benefits of the decision

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32 WEIGHING CAUSE FOR DISCIPLINE Expectations clearly established? Expectations reasonable?

33 WEIGHING CAUSE FOR DISCIPLINE Standards consistently enforced? Mitigating or exacerbating circumstances?

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36 BEWARE EVIDENCE 5/10/

37 REACH OUT FOR HELP 5/10/

38 TAKE ADVANTAGE OF ATTORNEY-CLIENT PRIVILEGE 5/10/

39 2016 This is legal education and not legal advice. An attorney-client relationship is not created by this presentation. You should consult your lawyer before taking any action that has legal consequences.