Friday, October 7, 2011

Betting on Who Will Get Fired Next - COTW #61

Some employers terminate their employees pretty often. Sometimes there are even rumors about who will get fired next. But you know what's probably not a good idea for employers? Holding a contest in which employees place $10 bets on who will get fired next! Bad idea, great Case of the Week!

In Shelsky v. QC Mart, the employee voluntarily quit and was trying to collect unemployment compensation benefits. The Admin Law Judge (ALJ) hearing the case, described the "contest," detailed in a memo to the employees:
NEW CONTEST – GUESS THE NEXT CASHIER WHO WILL BE FIRED!!! The game was listed as follows: “To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name (the person who will be fired), today’s date, today’s time, and your name. Seal it in an envelope and give it to the manager to put in my envelope. Here’s how the game will work. We are doubling our secret shopper efforts, and your store will be visited during the day AND at night several times a week. Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or no car personal car (sic) parked by the pumps after 7:00 pm, among other things. If the name in your envelope has the right answer, you will win $10.00 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again. AND NO FAIR PICKING MIKE MILLER FROM ROCKINGHAM. HE WAS FIRED AT AROUND 11:30 AM TODAY FOR WEARING A HAD (sic) AND TALKING ON HIS CELL PHONE. GOOD LUCK!!!!!!!!!!
Ordinarily, you can't collect Unemployment Compensation when you quit - unless there's an intolerable work environment. The ALJ felt the employee was justified in quitting under the circumstances:
The administrative law judge finds the employer’s "contest" to be egregious and deplorable. The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize. The claimant has established this was an intolerable and detrimental work environment.
And so the employee got her unemployment compensation.

You may have picked up on the "hostile work environment" language and thought, "Hey! I bet she has a great lawsuit!" Well, thing again. Hostile work environment claims are ordinarily premised on discrimination statutes and must target a protected class (like race, sex, religion, etc.). Not to mention that such claims must involve "severe or pervasive" conduct - I have doubts whether this would cut it. And, although the contest is in poor (Ok, REALLY poor) taste, it appears clearly intended to notify employees of specific (and reasonable) workplace rules, and the employer's efforts to enforce those rules. I think a lawsuit would be tough going....

HT: My McQuaide Blasko colleague, Jaime Bumbarger, who emailed me this story.

See also: Jon Hyman - Betting on a Lawsuit.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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