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Mar 29, 2017

Okay to terminate manager for violating behavioral contract

Harassment & DiscriminationTermination & Resignation 

A California Court of Appeals recently upheld an employer’s decision to terminate a senior manager for violating his behavioral contract. The manager had engaged in an affair with a non-management employee. After the relationship ended, the manager obsessively contacted the employee via text messages, calls, and visits to her house and neighborhood even after the police told him to stop. The employee finally reported her fear of him to company security, which prompted an investigation that confirmed the harassing conduct.

The employer initially decided to terminate the manager but then offered a behavioral contract in lieu of termination, to which the manager agreed. The contract forbade the manager to contact the employee in any manner. It also required the manager to “seek treatment for the types of inappropriate, uncomfortable, unwanted, persistent communications/behaviors [he] demonstrated” and to permit his treatment providers to keep the employer informed about his compliance. Two months later, the employee reported that the manager had been at her house and neighborhood, including “running off the porch and down the driveway and down the street.” Because this violated his behavioral contract, the employer terminated the manager’s employment.
 
The Manager’s Retaliation

The manager sued for wrongful termination on numerous grounds, including sex discrimination, disability discrimination, retaliation, and invasion of privacy, but his lawsuit was unsuccessful. He lost on his employment disability discrimination claim because (thankfully!) stalking is not a mental condition. His voluntary acceptance of the behavioral contract and its clear instructions prohibiting further contact with the employee were significant factors in shutting down many of his remaining claims (Wyant v. Intel Corp., Cal App, Jan. 2017).
 
Tips: This behavioral contract was essentially a “last-chance agreement.” Many employers are familiar with such agreements to address drug and alcohol policy violations, but it’s good to remember that they are useful for other types of serious employee misconduct, such as harassment. See our Model Form, “Last-Chance Agreement,” and be sure to seek help from your Vigilant employment attorney to tailor it to any specific situation.

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