What are the Proper Grounds for Termination of Employment in Michigan?
Unsatisfactory Performance
Failure to perform
Refusal to Perform
Inability to Perform
Misconduct
Intentional Misconduct
Negligent Misconduct
What is Unsatisfactory Performance?
Unsatisfactory performance means a failure to fully, completely, and adequately meet the job’s obligations—its tasks, functions, and goals.
There are three main categories:
First, an employee may simply fail to perform job duties and responsibilities; this type of failure is in the nature of negligence.
The second category encompasses the employee’s refusal to perform the job duties and responsibilities; this conduct involves a conscious and culpable choice to withhold the agreed-on level of performance.
Third, the employee is simply unable to perform the job duties and responsibilities; the inadequacy of the performance here is due to a lack of natural aptitude, acquired proficiency, or skill (physical or mental) to satisfactorily perform the duties of the job.
NOTE FOR EMPLOYERS!
Conduct performance evaluations and identify each specific aspect of performance to be evaluated. Identify potential problems early. If performance is unsatisfactory, state fully the precise reasons for a lowered rating and attach written examples of actual incidents or documentation supporting the rating. Give honest evaluations, including both strong and weak points. A good paper trail is unlikely to forestall wrongful discharge litigation, but it will weigh heavily in defending against a claim when one occurs.
MICHIGAN LITIGATION LAW NOTE:
In situations where there is an express or implied contract to discharge an employee for cause only, unsatisfactory performance is cause for termination.
An employer has the right to establish standards for assessing the quality of employee performance. See Toussaint v Blue Cross & Blue Shield, 408 Mich 579, 292 NW2d 880 (1980); see also Hatfield v Johnson Controls, Inc, 791 F Supp 1243 (ED Mich 1992); Hale v Comerica Bank–Detroit, 189 Mich App 382, 473 NW2d 725 (1991) (prohibitions on handling and receiving money during course of work); Zeniuk v RKA, Inc, 189 Mich App 33, 472 NW2d 23 (1991).
Even where there is a just-cause contract, a jury may not substitute its own judgment and decide the reasonableness of the employer’s standards. M Civ JI 110.10 comment. The jury may, however, determine whether unsatisfactory performance was a pretext or the true reason for the employee’s discharge. Toussaint, 408 Mich at 621–622. The reason for discharge should be clearly documented, and the documented reason must be the real reason because any subsequent change in the stated reason will empower the employee to argue that the employer’s proffered reason is pretextual.
What is a Failure to Perform?
Failures of performance are usually inadvertent (e.g., slight and occasional omissions; a lack of diligence; repetitive mistakes in assigned tasks and functions; a decline in effectiveness).
The employer’s first response should be notice to the employee of the specific shortcomings. The employer should attempt to ascertain whether the employee’s performance is being affected by personal or other non-job-related factors. Privacy rights are not an absolute bar to employer access to and use of off-the-job activities in employer decision-making. See, e.g., Baggs v Eagle-Picher Indus, Inc, 957 F2d 268 (6th Cir) (employer’s drug testing did not violate employee’s privacy), cert denied, 506 US 975 (1992).
Careful documentation of the employer’s remedial efforts and the employee’s failure to improve will be the best defense to any subsequent litigation.
What is Refusal to Perform?
A case of this nature is a hybrid between unsatisfactory performance and misconduct.
When the employee has chosen not to perform, unless he or she makes a conscious choice to do otherwise, failure of the employment relationship is inevitable. While the employer may implement traditional corrective disciplinary measures on the chance that performance might improve and to document nondiscriminatory treatment, such measures are usually ineffective in salvaging the employment relationship.
What is Inability to Perform?
Employers sometimes hire an individual who, on the surface, appears able to meet the obligations of the job. In truth, however, the employee lacks the necessary personal resources, skills, or talents necessary to do what is expected in the employment relationship.
A jury is likely to fault the employer for misjudging the skill and talent levels of the prospective employee in the hiring and promotion process. Thus, it becomes the employer’s obligation to reasonably assist the employee in acquiring the skills requisite to satisfactorily perform the job.
Michigan Litigation Law Note: As rapid changes in technology continue to impact the workplace, employers should seriously consider regular training for job duties affected by technological advances.
Employers should also consider moving the employee to an open position that more accurately matches the employee’s skills and talents. If such assistance or placement has been provided and the employee still does not meet the employer’s standards, the employee may be terminated. Again, the best defense to any ensuing litigation will be documentation of remedial or corrective actions.
Employers must be careful to ensure that they do not improperly terminate an employee who may be protected by the Americans with Disabilities Act of 1990 (ADA), the Family and Medical Leave Act of 1993 (FMLA), the Worker’s Disability Compensation Act of 1969 (WDCA), or the Michigan Occupational Safety and Health Act (MIOSHA). See Alston v Northville Reg’l Psychiatric Hosp, 189 Mich App 257, 472 NW2d 69 (1991) (upholding termination of employee after 100 weeks of medical leave).
What is Misconduct?
Because employee compliance with uniformly enforced rules protects the work environment and safeguards the employer’s business interests, individual employee discretion in the workplace must give way to the employer’s rules of conduct.
Intentional deviation from employer standards of conduct, express and implied, constitutes misconduct for which an employee may be discharged. Hodge v United States Sec Assocs, Inc, 497 Mich 189, 859 NW2d 683 (2015) (termination was proper when, despite acknowledgment of USSA’s “Security Officer’s Guide” prohibiting employee from accessing airport computers, plaintiff accessed airport’s computer system to assist passenger by retrieving departure information).
Supervisory employees are often held to a higher standard of care than subordinate workers. As a result, a subordinate employee’s misconduct may lead to suspension whereas a supervisor’s commission of the same offense may warrant discharge.
What is Intentional Misconduct?
A deliberate act that recklessly disregards negative workplace consequences is misconduct whether or not the employer has express rules prohibiting the conduct. See Shirvell v Department of Attorney Gen, 308 Mich App 702, 866 NW2d 478 (2015); Broyles v Aeroquip Corp, 176 Mich App 175, 438 NW2d 888 (1989); Watson v Holt Pub Sch, 160 Mich App 218, 407 NW2d 623 (1987); Bowns v Port Huron, 146 Mich App 69, 379 NW2d 469 (1985).
Employee conduct that totally disregards the employer’s business interests or that is disruptive or injurious to the employer’s business interests is cause for discharge. See Marcum v McWhorter, 308 F3d 635 (6th Cir 2002) (police officer was justifiably fired when adulterous relationship with police informant resulted in numerous complaints to police department); Shirvell; Broyles; Bowns; cf. Diamond v Witherspoon, 265 Mich App 673, 696 NW2d 770 (2005) (sexual assaults on females by police sergeant during traffic stops).
What is Negligent Misconduct?
Injuries are a likely outcome of intentionally negligent acts; however, a specific injury or damage resulting from the misconduct may not have been intended. The act, nevertheless, is manifest or gross negligence representing a disregard of the employer’s interests. Such misconduct, negligent or otherwise, is as much a justification for discharge as willful misconduct. Both are an affront to the employer’s business interests and the health and safety of others.
see Bell v. Employment Security Commission, 359 Mich. 649 (1960).