Employee Relationships and Protective Orders, Quirky Question # 79

Quirky Question # 79:

Like many companies, we periodically have situations where two of our employees get romantically involved.  (We don’t have a non-fraternization policy and don’t attempt to limit these relationships in any other way.)  Sometimes, the two involved employees have a great relationship and ultimately get married.  Some times, the relationship ends, but the employees seem to work things out amicably and it doesn’t affect their interaction at work.  Some times, it gets ugly.

I’m writing about one of the ugly situations.  For reasons I don’t fully understand, but about which I can draw reasonable inferences, one of our female employees has obtained a Protective Order against her former paramour.  I think they were living together, though our HR records show them as having two difference addresses.  Our female employee provided me with a copy of the Protective Order and asked for my assistance in “keeping that asshole, XXXX, away from me at work.”  She also advised me, in colorful language, that if I don’t keep him away from her, she intends to call the police and have XXXX removed from the worksite.

Frankly, my reaction is “life is too short” for me to have to deal with this nonsense.  Both employees are at-will employees.  My inclination is either to fire one of them or both of them.  Do you seen any problems with either of these approaches?

Dorsey’s Analysis:

I do see potential problems with the alternative approaches you are advocating.  First, if you were to fire just one of the two employees, you will need to determine the appropriate criteria for making this selection.  Will you base your decision on seniority?  Performance rankings?  Importance to your organization?  Other criteria?  Understand that firing either of these employees increases the risk of discrimination claims, especially if you discharge your female employee.  (I addressed some of these issues in a Blog analysis almost a year ago, which you can access by using the “View By Topic” tab on the upper-lefthand corner of this page.  Simply scroll down to “Non-Fraternization Policies;” that will enable you to access Quirky Question # 30.  I will not repeat the observations set forth in that prior analysis here.)

Terminating both of the employees involved is certainly a gender-neutral decision but even this approach is not with risks.  The primary concern I have is that even if both of your employees were fired, your female employee could initiate a claim for wrongful discharge in violation of public policy.

In April 2008, the federal District Court for the Northern District of Iowa confronted a similar situation.  In Rayburn v. Wady Industries, Inc., et al., No. C07-1008 (April 10, 2008), the court addressed a situation where two employees of Wady Industries, who had been involved in an on-again/off-again relationship and who had lived together on two occasions, had what you have charitably described as an “ugly” break-up.  Rayburn obtained a “No Contact Order” against her former boyfriend, Miller, whom she accused of domestic abuse, tied to alcohol abuse.  Recognizing that the two employees worked for the same employer, however, the court issuing the Order specifically provided that Miller was allowed to continue working at Wady Industries and could have contact with Rayburn, “as necessitated by employment.”  Rayburn provided the No Contact Order to Wady Industries, and the Company took some steps to minimize the contact between the two employees, including erecting a tarp between their two work stations (which were approximately 60 feet apart).

Despite the steps taken by the Company, Rayburn complained to the police that Miller was violating the No Contact Order, for work-related and non-work-related behaviors.  This resulted in the police being called out to the Company on several occasions.  Ultimately, the Company made the decision to terminate Rayburn for “disrupting the workplace.”

Defendants brought a Motion for Summary Judgment on Rayburn’s claim for wrongful discharge in violation of public policy.  In this procedural context, all facts alleged by Rayburn were assumed to be true.

The federal court began its analysis by pointing out that the Iowa Supreme Court recognized two exceptions to the doctrine of at will employment: a) discharge in violation of public policy, and b) discharge in violation of an employee handbook which constitutes a unilateral contract.  Based on Iowa precedent, the court enumerated four factors that had to be established to prove a claim for wrongful discharge on the basis of public policy: 1) the existence of a clearly defined public policy; 2) the clearly defined public policy would be undermined by the employee’s discharge; 3) the discharge resulted from the employee’s participation in the protected activity; and 4) other justifications for the discharge were lacking.

With this framework, the court then evaluated each element of the claim.  The federal court first addressed whether there was a clearly defined public policy.  Recognizing the clear guidance from the Iowa Supreme Court that public policy exceptions typically derive from the state Constitution and statutes, and that courts should be “careful to limit the tort action for wrongful discharge to cases involving only a well-recognized and clear public policy,” the federal court nevertheless found that a No Contact Order and the statute on which it is grounded set forth a clearly defined public policy to protect victims of domestic abuse.  The Court stated, “the Court finds that although Chapter 664A does not specifically mandate protection for an employee who reports a violation of a no-contact order, the forceful language of the statute articulates a clearly defined public policy of Iowa from which such protections can be implied.”  (The Court also relied on Iowa precedent providing similar protections to someone who reports suspected child abuse.)

Turning to the second element of the claim, the Court quickly found that allowing the employer to discharge an employee reporting violation of a No-Contact Order would undermine the public policy.  The Court emphasized that this was true, “especially when the violation occurred at the workplace.”

The District Court then concluded that Rayburn’s discharge appeared to have resulted from her engaging in protected activity, i.e., the reporting of the violation of the No-Contact Order.  This conclusion was based on the deposition testimony elicited by plaintiff’s counsel from those involved in the discharge decision, as well as other evidenced regarding Rayburn’s productivity, performance evaluations, and compensation.  Given the evidence Rayburn adduced, this issue could not be resolved in the Company’s favor on summary judgment.

Finally, with respect to the issue of whether there were other justifications for Rayburn’s discharge, the Court found that Rayburn had presented sufficient evidence to survive summary judgment on this issue.

The Rayburn case illustrates the risks your Company confronts if it terminates your female employee because she asked for your assistance in enforcing the Protective Order and advised you that she intends to call the police if your response is ineffective.  I recommend, therefore, that you continue employing your employee who obtained a Protective Order.  If you want to continue employing the male employee as well, you should consider options that would minimize his contact with his former paramour at work.  For example, could he be transferred to another facility?  If you don’t have another facility, could he be moved to another part of the facility where they both work to reduce the likelihood of contact between them?  If they are line or shift employees, could they be assigned to different lines or shifts?

In crafting the most workable solution, consider seeking input from your female employee.  When you do so, however, do not promise that you will follow her recommendation.  Rather, simply explain that you are seeking her input into finding a workable solution.  If you do find a workable “solution,” monitor the situation carefully.  Check in with your female employee frequently to ascertain whether the problem has been resolved.  Document her responses carefully if she advises you that the matter has been resolved.  If her opinion is the opposite, objectively evaluate whether the problem persists and, if so, try an alternative approach to solving it.

Of course, you may conclude (either with or without your employee’s input) that there is not an adequate solution involving the retention of these two employees.  It simply may be too disruptive to continue employing both of them.  In this context, the path least likely to lead to litigation is terminating the male employee.

If you elect to do so, you should be vigilant to ensure that this individual does not pose a risk of harm to your female employee at your worksite or others who work at your Company.  That topic, however, involves another analysis for another day.

Dorsey & Whitney

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