Employment & Labor Insider

You Human Resources professionals are familiar with this scenario.

You are present while a supervisor is disciplining an employee. The supervisor has a write-up, pre-approved by you, and hands it to the employee and asks the employee to sign and date it.

The employee says, "Nunh-uh."

Assume that the purpose of having the employee sign is only to show that the discipline was administered to the employee on a specific date. It is not considered an admission of guilt. You explain that to the employee. The employee repeats,

"Nunh-uh."

What do you do now?

Hmmmm . . .

Choice B is bad because you'll have no proof that the discipline was administered to the employee. That blank space gives the employee a golden opportunity to say he or she never got it.

Choice C is awesome . . . if you can get away with it. (Hat tip to my law partner Pat Tyson for having this sneaky idea.) But you probably won't get away with it, and I know Pat would agree.

Choice D is what I typically go with. Even though "Refused to Sign" isn't in the employee's handwriting, it is at least some evidence that the discipline was shared with the employee on a particular date. In my experience, once we get into litigation, employees are unlikely to deny receiving the discipline when "Refused to Sign" is noted on it. Instead, they usually admit receiving it and refusing to sign it, and then segue into why the employer shouldn't have given it to them. As an employer's lawyer, I can deal with that.

(Thank you, Little Susie. I meant to do that.)

But what about Choice A? Firing an employee for insubordination because the employee wouldn't sign the disciplinary document? This is risky, as a recent court decision shows.

The plaintiff (we'll call her "Kay") may be a delightful person. But, according to a partial dissent in the court decision, she sounds like kind of a jerk. She smarted off to her bosses, missed a lot of work, goofed off when she was at work, and provided inadequate notice of her vacations.

Of course, nothing is simple, and Kay, in addition to apparently having a "challenging" personality and very little work ethic, also had legitimate medical problems that required her to miss work.

One day her bosses got fed up with her and administered to her a formal written warning listing the areas in which she was deficient and in which she needed to improve. Some of these included her poor attendance.

Then they asked her to sign the document.

Kay replied, "Nunh-uh."

Kay claims that she told her bosses that she would not sign because she could not guarantee that her medical problems would not make her tardy or keep her out of work in the future. 

A few years earlier, Kay had been disciplined and had signed the document. Then she followed up with an extensive written rebuttal. Which proved she knew she wasn't "admitting" to anything by signing the more recent disciplinary document. Also, the document itself said that signing was not an admission of guilt but meant only that the employee had received the writeup.

The bosses fired Kay for refusing to sign the document, and she sued, claiming (among other things) that her termination was really in retaliation for exercising her rights under the Family and Medical Leave Act.

Did I mention that Kay's medical problems were FMLA-qualifying?

I didn't? My bad. They were.

A federal court in Georgia found in favor of the employer.

But Kay appealed, and last week two out of three judges on a panel of the U.S. Court of Appeals for the Eleventh Circuit reinstated the claim that Kay's termination for "refusal to sign" could have really been FMLA retaliation. That means Kay will be able to take that claim to a jury.

(She will also get to a jury on a claim that she was fired for saying she might need to take FMLA leave in the future. All three judges agreed on this one.)

If a jury reacts as negatively to Kay as I did after reading the dissent, then the company may be all right in the end. But this case illustrates why I'm not a fan of requiring employees to sign disciplinary or performance-related documentation under penalty of discharge. 

(Hat tip to my blogging buddy Bill Goren for alerting me to this decision.)