Firearmed

Of all the ethical concerns in the workplace, firing employees is at once the most clear-cut and the muddiest.

Most employers have, or at least believe they have, precise and all-encompassing rules for firing. It’s easy to say you can terminate a worker who steals. But how about an employee whose tardiness violates a written rule against being late?

Your rule book might say you can fire her, but what if an employee is pregnant and grappling with a really bad case of morning sickness?

It’s not always easy for a boss to know when to fire and when to hold back.

Here’s our challenge: Take this true-false test and see how well you’d do if you were responsible for a company’s discipline and rule enforcement.

If you aren’t a manager now, we might help you see the difficult arena of workplace discipline in a different light. If you are one, and you get more than four answers wrong, then be advised: You need a serious refresher course in employment law before you exercise the greatest power an employer has--the ability to fire.

(A note here: For purposes of this quiz, presume you are owner or general manager of a small to medium-sized, nonunion business in California. You have an employee handbook that says you are an “at-will� employer, meaning you can terminate a worker’s employment any time you feel it necessary to do so and that employees can quit at any time. The handbook also spells out basic rules of conduct. You also have an informal practice of attempting to counsel workers before terminating when you deem counseling to be appropriate.)

Here’s the test, prepared with the help of Newport Beach employment law attorney James McDonald Jr., who practices for the law firm of Fisher & Phillips and teaches the subject to management students at UC Irvine as well. Answer each question either true or false. Good luck!

1. You discover that an assembly worker in your widget factory has taken a part-time job doing the same work on the night shift for a competing widget maker. The employee didn’t ask for permission and didn’t inform her manager. You are justified in firing the worker because she is guilty of a serious conflict of interest.

2. After years of running a pretty loose ship, you decide to tighten up. Among other things, you announce that male employees no longer may wear earrings. A financial analyst who had pierced ears when you hired him 10 years earlier says it is unfair to make current employees adhere to the new policy. He shows up the next day with earrings in both ears. That’s a firing offense.

3. You have a smoke-free workplace and the rule is well-posted. No smoking anywhere in the building. You catch an employee sneaking a few puffs in the restroom during work hours. He says you cannot fire him because you often offer counseling to employees who come to you for help with drug or alcohol problems and nicotine is no different.

4. During a review of medical records, it is discovered that a salesman has lied about his relationship with the woman he lives with, claiming she is his wife in order to include her as a dependent on his health insurance. This is a firing offense.

5. One of your top sales employees, a woman who has met or exceeded every quota for the last five years, suddenly hits a slump and fails to meet her quarterly quota. You are justified in firing her because she knew that the job was based on meeting goals.

6. An employee with two years’ seniority leaves work ill and misses the next three days in a row without calling in. He comes back on the fourth day and says only that he had to go to the doctor. Your written policies state that employees can be terminated for unexcused absences. You can fire him.

7. After interviewing applicants for a job you decide the most qualified is a woman in a wheelchair. You are justified in not hiring her because you would have to make extensive and expensive alterations to the work area in order to accommodate her.

8. One of your vice presidents is a real party animal with a reputation for never leaving a bottle undrained. He doesn’t drink at work, but everyone knows he’s rarely sober on weekends. You can fire him because you have a “zero tolerance� policy toward drugs, tobacco and alcohol.

9. An employee uses a company computer during the unpaid lunch break to access a Web site that features pictures of couples engaged in explicit sexual activities. Another employee complains. You cannot terminate the computer user because the incident did not occur on company time.

10. You have a policy prohibiting tardiness. A female employee starts showing up late almost every day. Questioned by her supervisor, she says she’s pregnant and will need to be allowed to come to work up to two hours late each day because of morning sickness. Citing your tardiness policy, you can fire her.

11. An employee suspected of stealing is asked to take a polygraph test and agrees to do so. But after the test is scheduled, the employee changes her mind and objects. You can fire her for refusing to take the test.

12. An audit of your parts department reveals a significant shortage that was probably the result of theft. You can fire the parts department manager even though you have no evidence that he stole anything.

13. A female employee files a sexual harassment charge against her supervisor. An investigation reveals that the employee and the supervisor have a long-standing personality conflict but that there was no sexual harassment. You can fire the employee for filing a false claim.

14. A security guard reports an employee for smoking marijuana just before the start of his shift. You can fire the employee because of your “zero tolerance� policy.

15. You are having financial difficulties and decide that you have to trim payroll costs. Of your 60 employees, only 10 are paid more than $75,000 a year. All 10 are older than 40 and they are your only over-40 workers. You can save the same amount by cutting everyone’s salary by 20% or by laying off all those who make $75,000 a year or more. You can terminate the over-40 workers on the grounds that it is more economical for you to do so because their seniority also makes their benefit packages more expensive.

ANSWERS

1. False. This is not a firing offense, even if you have a written policy against conflicting outside employment. An assembly worker is not likely to have access to trade secrets or other insider information that would be beneficial to a competitor and thus create a conflict.

2. True. An employer can impose and enforce reasonable, nondiscriminatory dress and appearance policies even if they alter past policies. The employee can be told to remove his earring or be fired.

3. False. You have only offered counseling to employees who confess to a problem and ask for assistance. This worker did neither. So long as your policies are applied consistently and you have never offered counseling in lieu of termination in a similar circumstance, you can terminate the worker.

4. True. This violates common rules about honesty and constitutes an attempt to defraud the insurance carrier. By not terminating the employee, you could jeopardize insurance coverage for all your workers.

5. False. In the absence of evidence of other wrongdoing, failing one time to meet a goal is not likely to be grounds for termination. That’s especially true when you have an informal policy of providing counseling as a first step. Her failure to improve after counseling, however, would provide grounds for termination.

6. False. Employees who miss at least three days of work and receive medical attention may be protected under the federal Family and Medical Leave Act. Counsel the worker about the need to keep the employer informed of absences so the company or other workers aren’t inconvenienced, but don’t fire him.

7. False. The federal Americans With Disabilities Act requires employers to reasonably accommodate a disabled applicant who is qualified for the job. That includes altering the individual’s work area, unless you can prove that it would cause an undue hardship to the company.

8. False. Urge him to seek treatment, but you do not have the right to govern his behavior after hours, so long as he doesn’t show up for work with alcohol in his system.

9. False. As long as your company has a policy limiting use of computers to business purposes, or--better yet--limiting access to the Internet on company computers to business purposes, you can fire him.

10. False. You’d be hard-pressed to win this one in court. The law requires employers to accommodate pregnant workers by giving them four months of unpaid leave of absence--which can be taken on an intermittent basis. You don’t have to pay her for the time she misses, but you cannot fire her for missing it.

11. False. Firing her would violate the federal Employee Polygraph Protection Act.

12. True. Even though he is innocent of theft, ensuring that large amounts of parts don’t go missing is part of the parts department manager’s job, and he didn’t do the job you hired him to do.

13. False. The law bars retaliation against those who complain about harassment as long as the complaint was not shown to be an intentional fabrication. You might urge both of these workers to seek counseling, but you can’t terminate her.

14. False. You need direct knowledge of a violation, not another employee’s allegation. You could, however, use the allegation to require the suspect employee to take a drug test and base disciplinary action on whatever the test showed.

15. True. Until recently, you’d have been setting yourself up for an age discrimination suit. But the California Supreme Court last week upheld a state appeals court ruling that says in the absence of any other evidence of discrimination, firing older employees on economic grounds--because they make more money and have more expensive benefit packages than younger, less senior workers--is not unlawful.

OK, add ‘em up and give yourself a point for each correct answer.

If you scored 12-15, you’ve got what it takes to make the hard decisions and should do a good job of keeping your company safe in firing matters.

If your score was 7-11, you’d best seek outside legal advice before signing any pink slips.

And if it was all too muddy for you and you couldn’t get more than six correct, leave the firing and disciplinary decisions to someone else. Otherwise, we’ll be seeing you in court!