These ex-employees will almost certainly seek unemployment benefits, which leads us to wonder what would happen if a similar claim was filed here in Minnesota, where claimants are generally  entitled to benefits unless they were terminated for "employment misconduct."  Generally, one-time offenses  are usually not considered severe enough to be viewed as "employment misconduct."  However, a recent case from the Minnesota Court of Appeals suggests that violating a zero-tolerance policy for improper accessing of confidential health information would meet this test and would result in a rejection of a claim for unemployment benefits.

In Bingham v. Allina Health System, A10-872 (Minn. Ct. App. Jan. 11, 2011), Allina had a “no-tolerance” policy prohibiting its employees from “inappropriate access or sharing of patient information."  Nevertheless, Bingham helped a co-worker access her daughter’s lab test results.  Despite her clear violation of the policy, the Unemployment Law Judge (“ULJ”) found no misconduct because Bingham “reasonably believed” the co-worker was entitled to the information, and she “did not otherwise make inappropriate use of the information obtained.”

The Minnesota Court of Appeals reversed, explaining,

We conclude that the ULJ’s misconduct determination is contrary to both [Allina’s] policy and case law involving disclosure of medical information . . . .  The ULJ committed an error of law by concluding that [Bingham’s] accessing patient information did not amount to misconduct.

Bottom Line

This case seems to recognize the legitimacy of zero-tolerance policies as a tool for health care employers in their compliance with patient confidentiality obligations imposed by to state and federal medical privacy statutes, such as HIPAA.  Employers should be mindful, however, that this standard just relates to whether terminated employees are entitled to unemployment benefits.  The actual termination decision will likely be judged according to different standards, especially in a Union setting where “just cause” principles typically apply.

The New (Old) "Problem Employee"

In October, the Minnesota Vikings completed a trade bringing back wide receiver Randy Moss, who starred for the Purple for seven years before being traded in 2005.  The move was widely praised and Moss was hailed by many as the potential savior for Minnesota’s struggling offense.

Moss has always balanced unparalleled speed and skill on the field with maddeningly erratic and selfish behavior off the field.  His most recent stint with the Vikings featured mostly the latter, including allegations that he loafed through parts of games, influenced younger players into bad practice habits, and ranted mercilessly about the team’s buffet lunch.  His most outlandish act was a bizarre televised post-game press conference where he asked and answered his own questions, criticized Vikings coach Brad Childress and heaped praise on the coach and team that had just beaten them (which just happened to be the team that had just traded him to the Vikes).  A day later, Coach Childress cut Moss from the team.

Swift Action is Effective Action

The effectiveness of Childress’s coaching has been debated substantially throughout the season. His decisiveness in dismissing Moss only a month after obtaining him, however, is a good lesson for other Minnesota employers. 

We have every reason to expect new employees (or returning ones, for that matter) to put their best foot forward in their early days with the employer.  We should anticipate that they will want to show us how happy they are to have joined our organization and how committed they are to our success.  If in those first few weeks or months a new employee doesn’t hustle, or if they criticize management or embarrass the employer publicly, the situation is not likely to improve with time, and swift action is necessary.

Bottom Line

Don’t make the mistake of thinking that the employee will “grow up” or “settle down.”  Certainly we might expect some learning time regarding new skills and job tasks, but negative attitudes, critical comments and poor work habits do not bode well for the future.

If your organization has a probationary period in a union contract or employee handbook, put them to good use by quickly identifying and dismissing your Randy Moss.  Even in the absence of such policies, you can move decisively by determining that a new employee displaying unacceptable work habits or a difficult demeanor should not be allowed to remain on the team and bring everybody down with them.

In a nutshell, that is the story of Steven Slater, the JetBlue flight attendant whose antics seem to have elevated him to the role of folk hero in the media and the blogosphere.  He appears to have tapped a large reserve of anti-employer sentiment while playing out a “take this job and shove it” fantasy that seems to resonate with large numbers of people.

Why do so many people view Slater as some sort of spokesman for the common man (see the ABC News story  entitled Criminal or Folk Hero)?  Why has his rude and public temper tantrum become an anthem for disaffected employees?  The answer may be nothing more than the fact that many people just don’t like their jobs and would rather be doing something else.

Employers need to remember that an employee’s job dissatisfaction may not be rational or justified.  In today’s economy, when so many people should appreciate the efforts that their employers are making to preserve their jobs, workers are still going to feel frustrated, bored, unhappy or various other negative feelings when it comes to their jobs. 

In fact, CNN reported a Conference Board survey showing that 45% of employees were dissatisfied with their job--the lowest level since recordkeeping began 22 years ago.  You might even call this a case of the “JetBlues.”

Right or wrong, employers have to deal with this and the potential fallout that might result   It won’t be good for business if one of your employees (or ex-employees) is vested with folk hero or martyr status over their experiences at your company.  Therefore, even if you know you have a great working environment, expect some dissatisfaction and think of what you can do to minimize it and address it. 

Considerations include:

• Do employees in monotonous jobs ever get to rotate to different assignments? 
 
• Can the “culture” of the workplace be reshaped or enhanced in some way? 
 
• Is an Employee Assistance Program (EAP) available to help employees find more satisfaction on the job and more success outside of it?

A little prevention may go a long way in smoothing out a bumpy ride for employees.

What can happen when an employer makes and then rescinds a job offer?  Ask the University of Minnesota and Gophers’ basketball coach Tubby Smith, who recently had a jury call a $1.25 million foul on them.

Upon being named head men’s basketball coach in 2007 for the University of Minnesota, Tubby Smith contacted Jimmy Williams, assistant coach at Oklahoma State University, and former Gophers assistant coach in the 1970’s and 80’s.  After a personal interview and a follow-up telephone call with Smith, Williams quit at Oklahoma State, put his house on the market and got ready to return to Minnesota. 

The next day, Athletic Director Joel Maturi told Smith not to hire Williams because of his involvement in 15 major NCAA rule violations as a Gophers coach.  Smith informed Williams, who was then left without a job at either school.  He eventually sued the University and Coach Smith for promissory estoppel, which addresses the following circumstances:

1. Party One makes a promise which should reasonably be expected to induce reliance by Party Two;
2. Party Two actually relies on the promise; and
3. Injustice can be avoided only by enforcing the promise.

Coach Smith claimed he knew nothing about the violations and was disappointed that Williams had not disclosed them.  In addition, both he and Maturi denied that an offer was made since Maturi had the final say.  Williams countered that it was customary in the coaching industry for the head coach to have full authority to hire assistants.  Thus, Williams reasonably relied on Coach Smith’s offer.

The jury decided that Smith did not fairly represent the extent of his hiring authority. 

They found that it was reasonable for Williams to rely on Smith’s representations, and that such reliance caused harm requiring $1.25 million in damages.    Not surprisingly, the University is considering an appeal.

Despite the big time college athletics setting, all Minnesota employers can learn these lessons:

1.  Be precise when communicating a job offer, disclosing any limitations or contingencies (e.g. background check, drug test); 
2. Send an offer letter or document the proposal in some other fashion to be sure that there is no misunderstanding about the terms. 
3. Finally, know the limits of your authority.  Don’t promise more than you can deliver and anticipate that applicants will rely on what you say.