Written guidelines for employees, if consistent with the law and regularly followed, may protect employees from unemployment claims when they terminate employees for violations of these guidelines.
The Basic Facts of the Case
Cynthia Bailey worked for Pro Temps Medical Staffing as a certified nursing assistant (CNA). On December 11, 2011, she was terminated because she was sleeping on the job. Keep in mind, the employee was responsible for watching a patient who was on suicide watch.
The patient slipped out of the hospital room where Ms. Bailey was supposed to be keeping tabs on her overnight, and was found wandering the halls. Not surprisingly, Pro Temps terminated her employment, and subsequently Ms. Bailey filed for unemployment.
The Winding Course of the Case Through The Courts
Employers may be pleased to learn that the individual charged with the initial decision on Ms. Bailey’s unemployment application found that she was not eligible for unemployment because she was discharged for misconduct. Ms. Bailey appealed to the Appeals’ Referee, and again her application for unemployment was denied.
However, the story does not end here. The former employee again asked for a review of her case, and was heard by the North Carolina Department of Commerce, Division of Employment Security (DOC). For the third time, Bailey’s unemployment application was denied. Yet she still did not give up and asked for
review by the local county court.
Not all state agency decisions can be appealed to the local county court. For instance, appeals in workers’ compensation claims have to be appealed to the North Carolina Court of Appeals. Not so with unemployment
The local county judge disagreed with the DOC. The judge agreed that Ms. Bailey had violated the employer’s rules, which required that Ms. Bailey turn down the shift if she was too tired to handle the duties, namely staying awake so that she could watch the suicide watch patient. However, the county court found that Ms. Bailey was not guilty of misconduct.
Afterwards, the DOC appealed the trial court’s ruling, and the Court of Appeals reversed the trial court’s ruling, holding that the facts of the case, as found by the trial court, “could only support the conclusion that plaintiff had engaged in misconduct, and do not support a conclusion to the contrary.”
How The Employer’s Written Policies Protected Them
Importantly, the employer’s policy stated that an employee found sleeping on the job could be immediately terminated. The employer required employees to turn down shifts if they were too tired to perform their job duties. Finally, the employer made sure its employees were aware of these rules. Having good legal advice on setting policies for their employees, identifying the specific issues that were likely, and following their rules and their employment attorney's solid, practical advice allowed the employer to prevail.