October 20, 2019

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What the NLRB Can Teach You About Documenting Employee Misconduct

 Innocent mistakes are an unfortunate reality in our fast-paced, technology-driven society. But an employer does not have to tolerate an employee doubling down on his mistake by deceiving his employer and actively impeding an investigation into that mistake. That’s the main lesson from a recent Alabama federal district court opinion in which the judge held that the employer, which happened to be the National Labor Relations Board (NLRB), was within its rights to terminate its employee Gregory Powell, an NLRB field attorney with over 16 years of experience.

So, what happened? In the course of an investigation into the alleged unfair labor practices of a packaged meat manufacturer, Powell inadvertently emailed confidential witness affidavits to the attorney for the company he was investigating. Whoops! Talk about having a rough day.

While significant, this mistake alone may not have been enough to warrant Powell’s termination. What Powell did next likely sealed his fate with the NLRB, however. Instead of owning up to it, Powell compounded the issue by failing to report his mistake after he became aware of it; by refusing his supervisor’s request that he document the incident; and by attempting to mislead the person tasked with investigating what had happened. Based on the combination of these factors, the NLRB determined that any discipline short of termination would be inadequate, and Powell lost his job.

NLRBAt this point, you may think it’s obvious that an employer should have a right to terminate an employee who fails to cooperate in—and in fact, actively impedes—an investigation into his or her misconduct. But, as we’ve previously noted on this blog, even minor inaccuracies or inconsistencies in an employer’s otherwise reasonable explanation of why it terminated an employee can have disastrous results in court, and it is, therefore, critical to properly document and articulate the termination decision to avoid legal disaster when the time comes to justify the action taken. In this instance, the NLRB avoided these common employer pitfalls by effectively documenting and articulating its reasons for the termination, which supported the court’s ruling in the NLRB’s favor.

Consistency was another important aspect of the NLRB’s defense, as the recent court decision was actually its second legal victory over Powell. Prior to reaching federal court, Powell’s termination was reviewed by the Merit Systems Protection Board, an independent agency that oversees the federal merit system and the personnel practices of federal employers like the NLRB. Both the district court and the MSPB noted that the NLRB’s evidence supporting Powell’s termination and the NLRB’s ability to support all four reasons it articulated for the termination decision were sufficient to overcome Powell’s arguments in opposition, mainly that the NLRB had “no credible evidence” to support his termination and had instead discriminated and retaliated against him for previously filing a complaint with the EEOC.

For employers, this result offers two important takeaways. The first is to take comfort in the fact that an employee’s deceptive and insubordinate behavior can be met with discipline, up to and including termination. The second is to realize that in order to reach this result and repeat the legal success of employers like the NLRB, you should have a system in place to properly document the reasons for disciplinary action so that if those actions are later questioned, you can articulate through documentation a consistent reason for termination.

© 2019 Foley & Lardner LLP


About this Author

Michael Ryan, Employment Lawyer, Foley Gardere Law Firm

Michael Ryan is a labor and employment associate in Foley Gardere’s Houston office. His practice involves counseling employers on a wide-range of employment matters, including hiring and firing decisions, EEO and FLSA matters, enforcement of personnel policies, leave issues, accommodations, drug testing laws, classification of employees and other wage and hour matters, OSHA claims, safety regulations and governmental investigations. Michael represents clients of all sizes, including multinational corporations, local businesses and executives. He has represented clients in various sectors,...