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Fictional Hotline ~ What We Have Here Is A Failure To Communicate

December 11, 2015

By Michael G. McClory

The Bullard Edge is fascinated by the difference between lies and failures to communicate.  There can be a subtle distinction between the two and both have a huge role in the workplace.  The lawsuit filed against USC by former football coach Steve Sarkisian drove this point home. 
 
On the one hand, Sarkisian claims that he is a victim.  According to the complaint, in October Sarkisian “came to grips with the fact that he suffered from alcoholism” and “pleaded” for “time off to get the help he needed.”  He alleges that “[i]nstead of accommodating [his] disability, USC kicked him to the curb” by terminating his employment. 
 
On the other hand, USC believes it treated Sarkisian fairly and lawfully.  While it has yet to answer the complaint in court, the university did release a statement to the press: "The record will show that Mr. Sarkisian repeatedly denied to university officials that he had a problem with alcohol, never asked for time off to get help, and resisted university efforts to provide him with help.  The university made clear in writing that further incidents would result in termination, as it did.”
 
These are two incompatible stories.  Is Sarkisian telling the truth, which would mean USC is lying?  Or, is the university telling the truth, which would mean the former coach is lying?  Or is the truth buried in a failure to communicate that lies somewhere in between these incompatible tales?
 
The Bullard Edge is not going to take sides on the dispute (other than to sincerely hope that Sarkisian does get the help that both parties agree he needs).  Instead, we want to take a closer look at misunderstandings between employees and employers.  Our theory is that most employment disputes live here.  By way of illustration, we are turning to the (fictional) Bullard Edge Hotline.  Earlier this week we received a call from JC, an HR manager, who called with a question about a possible termination for dishonesty.  She said an employee lied, in violation of policy, and should be fired.  JC’s conversation with the Hotline speaks to that distinction between lies and misunderstandings.  Here is the transcript.
 
 
HOTLINE: Good morning. Bullard Edge Hotline.

CALLER:

I can’t believe I got through on my first try. Here’s the situation. One of our employees lied in order to get time off of work. I have proof that he lied. It violates our workplace rules. Can I fire him?

HOTLINE:

I am not sure why you are calling the Hotline. If it is as cut and dried as you say, then you already know the answer. There must be more to the story and I assume that is why you called.

CALLER:

You’re good. There is more, although I don’t think it matters.

HOTLINE:

Ok. Let’s approach it like this. What is your name and tell me a little about the employee.

CALLER:

Sorry.  My name is JC and I am the HR manager at ChocTalk.  We create recipes that feature chocolate as the key ingredient and then we license the right to use the recipes.

HOTLINE:

That’s a great company.  Didn’t it make last year’s list of most admired companies?

CALLER:

You bet.  Lars, the employee in question, is part of our design team.

HOTLINE:

Lars the Liar?  Ok.

CALLER:

About four months ago Lars came to my office and told me that he had converted.

HOTLINE:

Converted?

CALLER:

Religion, you know.  Lars said that he converted and that he would need to miss work every other Thursday and Friday.

HOTLINE:

Did he say what religion or did you ask for anything more?

CALLER:

I didn’t ask for the name of the religion.  I thought I read in your Bullard Edge blog that once an employer is on notice of the need for religious accommodation, then under federal and Oregon law the employer must reasonably accommodate the employee’s sincerely held religious practices and beliefs, unless providing accommodation would result in undue hardship.  Is that not right?

HOTLINE:

No, that is right.  I guess what I am wondering is whether you were convinced that Lars had a sincerely held belief.

CALLER:

Yes.  He said he converted.  That sounds fairly committed to me.

HOTLINE:

So you heard him to say that he had a religious need for time off from work.  It sounds like you agreed to give Lars time off.

CALLER:

We did.  It was not a hardship.  Lars is a brainstormer/test baker.  We have two others who also hold that position.  They just think about chocolate and experiment with their thoughts and every once in a while think of a recipe or recipe improvement that turns out to be a big seller.  Doesn’t that sound fun?

HOTLINE:

It does.  Is Lars good at brainstorming and test baking?

CALLER:

He is ok and has come up with a few moneymaking recipe improvements.  However, in each case the improvement involved butterscotch chips, not chocolate.  Claude, the company founder, does not like butterscotch and does not seem to like Lars.

HOTLINE:

What a workplace!  Take me back to the lie and your “proof” of it.

CALLER:

Right.  I recently found out that Lars did not convert.  I should have said that, when he asked for time off, Lars also said that his new regimen would not allow him to sample any ChocTalk prototypes and he has avoided doing that over the past four months.  I got the sense that away from work he was fairly observant, too.  He got thin.  I think it was messing with his health, but I was not about to challenge his religion.

HOTLINE:

What do you mean when you say he did not convert?

CALLER:

Outside the lunchroom recently I ran into Claude who asked when Lars gets done with chemo.

HOTLINE:

What?

CALLER:

That’s what I said.  What chemo?  Apparently, Lars did not convert to a new religion.  He just said that so that he could take time off of work to get chemotherapy.

HOTLINE:

Is that the lie?

CALLER:

Yes.  He lied to get time off of work.  I hate being played for a fool.

HOTLINE:

Hey, now, JC.  Take a deep breath and answer this.  Why would Lars lie about chemo to get time off of work?  Would you have denied a request for medical leave?

CALLER:

No.  Just as for religion, there would have been no undue hardship issue.  Lars could have been honest and asked for medical leave and he would have received it.  I have no idea why he chose to lie.

HOTLINE:

Hear me out on this, but I do not think Lars lied to you.  He said he converted, right?  But he did not actually use the words religion or religious or worship or minister or anything else like that, right?

CALLER:

That’s right.  He just said he converted.

HOTLINE:

What if he meant that he was changing medical treatment from whatever he had been receiving to chemo?  What if because of the chemotherapy he was told not to eat chocolate or butterscotch and maybe a number of other foods?

CALLER:

He never said that.

HOTLINE:

Is it possible that is what he was talking about and that you assumed it was religion?

CALLER:

I never thought of it like that.

HOTLINE:

But it does sound possible, right?

CALLER:

Ok.

HOTLINE:

And if that is what he meant, then there was no lie.

CALLER:

True.  So what do I do?

HOTLINE:

Well, the Hotline is not for legal advice.  We just help you sort through issues.  In this case, it seems like there are a couple of areas you may want to explore.  For one thing, you may want to talk to Lars and clarify all of the relevant facts.

CALLER:

That is a good idea.

HOTLINE:

If it turns out this is not a religious accommodation issue, and may be a medical issue, you might want to look at ChocTalk’s obligations under FMLA and OFLA, and you might want to consider the company’s obligations with respect to reasonable accommodation and the interactive process under the ADA and Oregon law.

CALLER:

I see what you are saying.  Do not terminate Lars for lying.  He did not lie.  I leapt to conclusions and now I need to clean things up a bit.  Anything else?

HOTLINE:

ChocTalk is not in Portland so there is no need to worry about Portland’s paid sick leave ordinance.  However, we are approaching 2016 and as you know effective January 1, 2016 ChocTalk will need to comply with Oregon’s Paid Sick Leave law.  Just this week BOLI published final rules.

CALLER:

Thanks.  Sorry to have wasted your time.

HOTLINE:

No waste at all, JC.  That is why we are here.  Happy holidays from The Bullard Edge.

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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