Extraordinary Employee Misconduct – Giving a Non-consensual Haircut!
By Fiona W. Ong - Shawe Rosenthal LLP
September 5, 2018
I was amused by a recent case involving rather odd facts. Apparently an employee arrived at work with windblown hair. Her co-worker said “I can fix that for you.” The employee responded, “Sure, go ahead.” The co-worker then picked up a pair of scissors and proceeded to CUT THE EMPLOYEE’S HAIR! Now, that probably would have been fine (or at least somewhat understandable) if they worked at a salon, but these employees worked at a hospital! In the pharmacy department!
This scenario raises so many questions, doesn’t it? Why did the co-worker think it was acceptable to cut the employee’s hair? Without asking? Why didn’t the employee say something when she saw the co-worker pick up the scissors? Or even when the co-worker started the impromptu trim? The mind boggles.
Apparently news of the involuntary beauty treatment spread throughout the workplace. Two days later, the Director of Pharmacy and an HR manager asked the employee about it. She said that she was surprised by the haircut. The co-worker was interviewed and admitted giving the haircut. She was then informed that her employment would be terminated for violating the hospital’s policy on workplace violence!!!
(As an aside, even though I don’t necessarily disagree with the termination decision, I find the reason for termination a bit of a stretch. I recognize that scissors can be wielded with deadly intent – but to characterize a haircut as workplace violence? Huh. Perhaps it was a very, very bad haircut…)
The co-worker was informed that, as a union member, she had the right under the collective bargaining agreement (CBA) to grieve the termination decision. She was also given the option to sign a resignation agreement in lieu of termination, which waived her CBA rights to grievance and arbitration. She opted to sign the agreement, but then filed suit alleging, among other things, a violation of the Labor Management Relations Act (LMRA) for breach of the CBA.
In order to bring such a claim, the employee must first exhaust the grievance procedures under the CBA. This, our haircutting co-worker admittedly did not do. Instead she argued that her consent to the resignation agreement, in which she waived her rights to use the grievance procedure, was “forced” or “involuntary” – essentially a claim of economic duress, since a termination would result in a loss of certain post-employment benefits and a negative impact on her future employment applications.
In Takki v. Beth Israel Deaconess Hospital-Plymouth, Inc., the court rejected the co-worker’s claim of economic duress, noting that such a claim is available only in “extreme and extraordinary” situations, and this was not such a case. The co-worker was given the choice between (1) termination and invoking the CBA grievance process; and (2) resignation with benefits including medical insurance and the payment of certain paid leave banks. This, according to the court, is “the type of hard bargaining that is not only acceptable, but indeed, desirable, in our economic system, and should not be discouraged by the courts.” (Internal quotes omitted).
So, this case confirms that employees cannot invalidate their separation agreements just because they are facing economic stress when they choose to sign. And it also confirms that haircutting is not an appropriate activity for most workplaces!
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