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Dec 14, 2015

"But I thought ...

By: Paul Ebeltoft

… you wouldn’t make me change my schedule,” is what a long-time employee told her employer. The employer insisted. The employee balked. The employee was fired. The employee sued. The employer won.

You can read the December 1, 2015 decision of the North Dakota Supreme Court in Yahna v. Altru Health System at http://www.ndcourts.gov/court/opinions/20150083.htm While vindicating the termination and while not establishing new law, this case should serve to teach a broader lesson: smart companies must integrate solid HR principles into virtually every corporate operational decision. If HR professionals are not at the decision-making table or are not guiding the hand of management in employee termination decisions, they should be.

The facts

In 1984, Lori Yahna (Lori) began working for the predecessor to Altru Health Systems (Altru) as a licensed practical nurse. She received training in vascular ultrasound technology and by 1986 she was working solely as a vascular technologist. Lori initially worked full-time with on-call responsibilities, but in 2001 she received approval to work three days per week with no on-call responsibility. Lori had this schedule, apparently, for 11 years. Lori became coordinator and technical director of the vascular ultrasound lab in 2006.

In late spring of 2012, Altru restructured its operations into separate vascular and general ultrasound departments with a new supervisor over both units. In mid-2012, Altru told Lori that she needed to resume taking on-call responsibilities. Lori claimed that her schedule was to remain unchanged in spite of the restructuring. Altru admitted that supervisory positions were exempt from taking call. However, Altru also claimed that, after the restructuring, Lori no longer had supervisory or coordinator’s responsibilities. Instead, Altru asserted that Lori became a general and vascular ultrasound technologist, and that all employees in this position were required to take call.

Lori was terminated on July 2, 2012, after she informed Altru that she was unable to take on-call duties “at this time.” Lori was forty-eight years old when she was terminated after 26 years on the job. Lori sued Altru, alleging it violated its own written policies and procedures in terminating her before following its grievance processes. Lori also alleged that Altru’s employment policies could be construed as creating a contract of employment, abrogating her at-will status and that she was discriminated against her because of her age.

The decision

The North Dakota Supreme Court used tried and true principles, not new law, in vindicating Altru. The Court swept aside Lori’s assertions about her job responsibilities and schedule after the restructuring. It found that Lori’s claim of age discrimination needed to meet four requirements, namely: (1) membership in a protected class under the Act; (2) satisfactory performance of the duties of the position; (3) an adverse employment decision; and that (4) others not in the protected class were treated more favorably; but that she failed to adequately prove elements (2) and (4). The Court also found that, while employment policies may create contractual rights overcoming the at-will employment presumption in this state, Altru’s policies read as a whole preserved the at-will employment status of its employees.

So what’s the takeaway?

In the opinion of this writer, there is not much comfort for employers in the Supreme Court’s decision, even though Altru won. Altru’s victory seems to hinge on the characterization of Lori’s evidence as “conclusory” or “speculation.” There is not enough explanation in the Supreme Court’s opinion for us to know why the Court felt the way it did. In other words, given the exact same situation, with a modicum of different proof, the decision could have gone against the employer.

You do not want your company to be the employer on the losing side. Here is what I think your Company should learn from Yahna v. Altru Health System:

(1) Unless done for an unlawful purpose or prohibited by contract, your company can restructure its business and alter employee job responsibilities. What happened here is that Lori did not appear to understand that the restructuring would change her 11 year-long work schedule. This may be evidence of corporate deafness, lack of clarity in communication, or employee stubbornness. We can’t tell from the decision.

Regardless, HR should help assure that your company’s restructuring efforts don’t end in court. HR should identify the employees whose jobs or benefits will change by a planned reorganization. Before implementation, HR should meet with each employee who is affected to make sure that the scope of the restructuring is clearly explained. Any potential problems identified in these meetings (such as promises made to employees years before) should be brought to management as there may be work-arounds that could save tens of thousands in legal fees alone. To do this effectively and with confidence, HR needs to be an integral part of your company’s decision-making matrix.

(2) While your policies may allow management to trump the grievance process and go straight to termination, what is lost by following a grievance policy? In most cases, nothing but time. In this case, Lori claimed that she orally expressed a grievance and that a separate part of the policy book outlined what should have happened next. Instead she was fired. The North Dakota Supreme Court picked from various parts of the Altru handbook, apparently not from the grievance policy itself, to find that Altru retained the right to do what it did.

The record does not disclose whether HR was involved in Lori’s termination. It should be in almost all job-ending decisions. Reading the Supreme Court’s opinion does not tell us whether Lori, after 26 years on the job, was a chronic workplace problem or if Altru’s management felt that her grievance was nothing more than insubordination justifying immediate firing. It doesn’t describe whether the firing was a result of a heated exchange or deliberate decision-making. But again, if all we know is that an employee thought that her 11-year schedule was secure while management thought differently, what is lost by following a grievance policy? HR should exercise one of its most admired skills, high EQ, and counsel management to take this process in steps rather than set the stage for a showdown in court.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)


I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the December, 2015 Southwest Area Human Resource Association newsletter.