Return-To-Work for Problem Employees

One of my customers has a long term employee who is returning to work from another work injury. This employee has never been a productive worker and in addition to his poor attitude, he is becoming difficult for other employees to work with. The employer has had enough of him and wants to fire him. Can he do this?

The short answer is: probably not in Missouri, but it depends. My guess is that this employee may have been “called out” on several occasions for his performance problems and attitude, but if these deficiencies were not written up with correction plans and goals, there is no way now to document these disciplinary measures. The problem is that an improper discharge will likely result in a successful Discrimination claim. Even if the employer has the proper EPLI coverage in place, this would likely not be a good result. Some of the reasons for this include: the claim experience to the EPLI policy, the negative effect is has on fellow workers and that it might encourage other claims to be filed. There may be a justified business reason for terminating the employee but a new Missouri Supreme court decision in Templemire v. W&M Welding concludes that an allegation that the employer retaliated for the worker filing a Work Comp claim need only show that the claim was a “contributing factor” rather than the exclusive reason for the discharge. That would be a fairly low standard in this case since the employee only recently returned from the work injury.

This highlights the importance of formally documenting ALL employee rule or safety violations and any failure to meet production standards. This process must be applied equally to all employees and each infraction must be recorded, placed in the employee file and immediately followed by a counseling session. The session should end with the violation and the required corrective action being acknowledged by the employee in writing along with a notation of the disciplinary action that would result from the worker’s failure to take the corrective action or commit a similar violation in the near future. It is important that company rules, safety procedures and production standards must be written, understood and acknowledged by every employee and equally enforced on all workers.

In this case, my recommendation is to immediately develop and present to the employee a list of infractions, and a comprehensive development plan, detailing the performance problems, listing the prior discussions in which an attempt was made to address these problems, and specific action required of the employee along with a timeline over which the correction was to take place. He also needs to be clear as to the result if he fails to take these corrective actions and lastly he should be required to sign the plan along with his manager and a witness (HR person etc.) At the same time the worker should be told that he and the company were at a crossroads and there was a question as to whether he would be happier finding employment elsewhere. If that is the case, my suggestion is that the employer makes him a severance offer. (It must be made clear to the employee that this severance is totally separate and independent from any settlement by the insurance company for his injury.) The severance offer should have a narrow window for him to make the election – perhaps two or three days before the offer is withdrawn. If he decides to accept the severance offer he should be required to sign a resignation and release (to be drawn or approved by the company attorney) with language agreeing not to discuss this arrangement with fellow employees and to leave the company in a quiet and cooperative manor.

The laws applicable to this process vary greatly from state to state. You should always contact your local labor attorney before starting this discharge process, regardless of the location.

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