By Dayana Donisca
In his first season as Head Coach, fans revered Ime Udoka for leading the Boston Celtics team to the brink of the 2021 NBA Championship. However, news of Udoka’s suspension at the start of his second year – and ultimate termination – landed him in the news for different reasons. The Celtics declined to make public the details uncovered from an investigation by an independent law firm; but stated that Udoka’s termination was due to allegedly improper behavior. While the public may never know the full details, this high-profile workplace disciplinary matter serves as an excellent reminder to employers of all sizes and in all industries to have policies and procedures in place to deal with complex employee disputes. Below are a few tips for organization leaders, general counsel, and employment attorneys to keep in mind when deciding/advising clients to cut ties with an employee.
Company Policies: When possible, look to internal policies and precedent to guide decisions about discipline.
While employee handbooks cannot anticipate every possible workplace issue, having a handbook with key policies addressing basic employee conduct and disciplinary procedures can help ensure consistency and control for employers, as well as transparency and fairness for employees.
For example, depending on the workplace environment and employee dynamics, an employer may need to consider having detailed and express policies regarding fraternization. Consider an environment like the NBA, where staff members, coaches, and players frequently travel and work together in close quarters. In this type of workplace, establishing guidelines to encourage appropriate and safe interactions between employees may be prudent, especially among supervisors and subordinates. Having these policies in place can also help guide any disciplinary action in the event of a violation. Before terminating employees, make sure to review your company policies to ensure that the termination is aligned with those policies.
Timing & Public Relations Considerations: When taking action against a high-profile employee, consider the range of impacts for your organization, anticipate negative press, and plan accordingly.
Just before Udoka’s suspension, the NBA fined Phoenix Suns owner Robert Sarver $10 million and suspended him for one year, in light of an investigative report documenting repeated incidents of racist, misogynistic, and harassing behavior that was corroborated by more than 70 former and current Suns’ employees. On the heels of the #BlackLivesMatter and #MeToo movements, Sarver’s penalties were applauded as an ongoing move to purge the NBA of systemic racism and misogyny. In contrast to the Sarver situation, the disclosure of Udoka’s suspension lacked important context which led to some backlash. In particular, the lack of detailed information disclosed about Udoka’s suspension by the Celtics caused some commentators to speculate that Udoka was treated unfairly due to his race, and brought criticism to the Celtics’ front door.
As such, it is important that employers adequately and appropriately convey information, when necessary, to avoid such public criticism. For even when an employer may have a valid reason for terminating an employee, public relations and other business-related considerations can factor into the management of employment disputes just as much as legal considerations. Having reliable legal, business, and public relations advisors on your team when a crisis arises can be critically important. For instance, if an organization penalizes similarly situated employees for violating company policies differently, this is a red flag to the courts and, the court of public opinion.
Legal Claims: Understand the possible legal exposure in involuntary employee separations.
Most employees are “at will” and therefore can be terminated at any time for any reason. Involuntary employee separations can be stressful and emotional, and if not handled appropriately, employees can react by pursuing legal claims against their employer. Thus, employers contemplating adverse actions against an employee, such as suspension or termination, should make these decisions carefully and ensure that any proposed action is consistent with the employer’s own policies, and with its treatment of similarly situated employees.
- Discrimination: Always consider federal and state-specific antidiscrimination laws including Title VII, Title IX, and Mass. Gen. L. c. 151B in involuntary separation situations.
Generally, disparate treatment of employees in disciplinary actions should be avoided to prevent claims of discrimination. Employers should consider whether a person is in a protected class when making a termination. Doing so mitigates a potential legal claim from an employee that the employee was treated differently because of membership in a protected class (e.g. race, gender, age, disability). Employers should also be aware of anti-retaliation laws, and tread lightly when contemplating adverse action against employees who have made complaints about unlawful workplace conduct.
- Wages: Always consider federal and state specific wage laws and make sure that the employee has received their final wages.
Generally, employers should consider federal and state-specific wage laws, including whether the employee in question is paid on a salary or hourly basis, when considering any cut or reduction in compensation. Under the Massachusetts Wage Act (Mass. Gen. L. c. 149 § 148), employers cannot refuse employees any wages or compensation (including vacation time) they have already earned. Massachusetts Wage Act violations potentially expose employers to attorneys’ fees and treble damages on top of any unpaid wages.
Contracts and Agreements: Consider contractual restrictions, separation agreements, and/or post-employment covenants.
Some high-level employees work pursuant to an employment agreement that contains specific severance provisions or conditions around termination. Even employees who are at-will may be subject to other contractual restrictions, such as non-competition or non-solicitation agreements. Employers who are terminating employees subject to any contracts should be sure to review all relevant terms so that they properly understand their rights and obligations if they decide to terminate the employee.
In situations where an employee is terminated, employers may consider memorializing the parties’ understanding in a written severance agreement. A severance agreement offers an employee a monetary benefit in exchange for a release of claims against the employer, thereby providing a sense of finality and closure to all parties. When contemplating severance agreements, employers should consider: (1) whether an agreement is necessary; (2) what compensation it is willing to offer the employee; (3) what clauses are important to it (and the employee); and (4) when to present the separation agreement and begin the termination process. While a severance agreement can be an excellent tool for employers, businesses would be well-advised to discuss the decision to offer a severance agreement, the terms of the agreement, and the drafting of the agreement with legal counsel.
Issues related to employee discipline and termination are complex and multifaceted. In sum, when considering the involuntary termination of an employee, at a minimum, employers and employees should review and consider: (1) company policies, (2) timing, (3) potential legal claims, and (4) contracts and agreements. When considering these issues, employers who take a team approach (pun intended) and take care in the process, particularly when faced with a difficult employee dispute or disciplinary issue, are more likely to reach a favorable outcome.
Dayana Donisca is an associate at Conn Kavanaugh Rosenthal Peisch & Ford LLP. She served two years in Notre Dame Mission Volunteers AmeriCorps in Baltimore City, Maryland, and in Brookline, Massachusetts. Dayana graduated from Suffolk University Law School in 2021 and from Queens University of Charlotte in 2015. In her spare time, Dayana enjoys mentoring aspiring Black women professionals and traveling with a goal to visit all continents.
 Tim Bontemps, Boston Celtics Owner Wyc Grousbeck Says Suspension Of Coach Ime Udoka The Result Of Monthslong Investigation, ESPN, (Sept. 30, 2022), https://www.espn.com/nba/story/_/id/34650147/boston-celtics-owner-wyc-grousbeck-says-suspension-coach-ime-udoka-result-months-long-investigation. .