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August 2012

Paratransit v. Unemployment Insurance Appeals Board, (2012) 206 Cal. App. 4th 1319

In most appellate cases and labor and employment arbitration decisions, insubordination in the employment context is defined as a refusal by an employee to work as directed by someone in authority.  Some cases focus on an employee's right to refuse to follow an order which requires him to act illegally or unethically.  However, in general, failure to require employees to work as directed has dire consequences for an employer.  A lack of discipline and respect in the workplace can be a source of aggravation for coworkers and supervisors alike.  The Court of Appeal recently handed down a decision in Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros) affirming that an employee who refuses to accept a lawful order of someone in authority is guilty of misconduct and willful or wanton disregard of the employer's interests such that they are disqualified from unemployment benefits pursuant to section 1256 of the Unemployment Insurance Code.
 
In Paratransit, the employer and the employee's union were parties to a collective bargaining agreement which, among other terms, required that "All disciplinary notices must be signed by a Vehicle Operator when presented to him or her provided that the notice states that by signing, the Vehicle Operator is only acknowledging receipt of said notice and is not admitting to any fault or to the truth of any statement in the notice."

The employee and real party in interest, a Vehicle Operator, was the subject of a passenger complaint.  After a full investigation, the employer called the employee to a meeting and presented him with a written disciplinary notice.  The employee, acting under a belief that his union president had instructed all members never to sign anything without a union representative present, refused to sign the notice and was terminated.  The employee applied for unemployment insurance benefits, which were originally denied because the Employment Development Department and the California Unemployment Insurance Appeals Board administrative law judge found that the employee was discharged for "misconduct" and thus disqualified from receiving unemployment under Section 1256 of the Unemployment Insurance Code.

The issue ultimately reached the Court of Appeal, which held that the employee was terminated for insubordination under Section 2856 of the Labor Code, and thus disqualified from unemployment insurance benefits.  In short, the Court of Appeal found that the employee's refusal of the employer's request to sign the disciplinary notice constituted an unjustified refusal to comply with a lawful and reasonable order.
 
Disciplinary control of a workplace is not always easy.  Some supervisors tend to give problem employees the "kid glove" treatment.  This is particularly true with employees who perform well, but are considered high maintenance or "eccentric."  Nevertheless, most experienced managers recognize that the breakdown of morale and discipline which accompanies allowing subordinates to disrespect or disregard supervisors and managers is damaging to the entire workplace in that it undermines the morale of good employees.

Although arising in the context of a unionized employer, the Paratransit decision is not limited to those situations in which a collective bargaining agreement requires members of a union to sign disciplinary notices.  Indeed, the Court of Appeal pointed out that the lower court and the collective bargaining agreement were in sync on this issue.  Consequently, Gordon & Rees recommends that employee handbooks make it clear that an employee must provide written acknowledgment of a receipt of a disciplinary notice and that refusal to comply with a legitimate and legal employer directive is grounds for termination.  Supervisors and managers should be aware that when a legitimate, clear, and concise directive is given to an employee, it should be complied with.  Disciplinary notices, however, should always clarify that, by signing the document, the employee is confirming its receipt and not endorsing its content.
 
A lack of compliance with lawful directives from any employee undermines the employer's control of the workplace and damages the work environment for everyone.  On the other hand, managers and supervisors should also be warned that attempts to have an employee acknowledge certain facts during an investigation or provide specific factual information may not be protected by the same set of policies.  Encouraging frankness of employees should be the goal in most workplaces.  A lack of frankness undermines the trust relationship which is necessary to assure a truly hospitable, productive, and secure workplace.
 
Similarly, directives which are given in an informal or vague fashion may not be accorded the same levels of enforcement.  Managers and supervisors should secure compliance through usual HR procedures including, if necessary, discipline sanctioned by the employer's handbook or policies and procedures.  Raising of voices, use of profanity and physical intimidation are not appropriate in the workplace.  Nothing damages a workplace faster than screaming, intimidation, or physical touching of employees in anger.  Every employee is entitled to a secure and hospitable personal work space.  Employees should generally be allowed to perform without significant interference.  Nevertheless, lack of performance, attention to detail or failure to follow lawful directives are all work behaviors which industrial psychiatrists  believe contribute to damaging employee satisfaction and morale.

 

Employment Law

James McMullen


Employment Law
Labor

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