Employees Reinstated Despite Post-Discharge Conduct Unless Serving Time in Prison

Employee Neel began working at a call center in early 2011 that solicited donations for non-profits. He was instrumental in organizing workers into a union, was elected union steward, and became a member on the union negotiating committee. Neel was fired in 2012 for breaking multiple protocols while on the phone. Yet, the Board ruled his termination was in retaliation for him engaging in protected concerted activity. The Board ordered Neel reinstated, but the Company argued that Neel’s post-discharge conduct negated its obligation to reinstate him.

Specifically, when interviewed by the local newspaper, he called his former employer a Ponzi scheme, said he no longer believed in the non-profit’s cause, and concealed his criminal record prior to employment with the Company. Neel testified before the Board that he was angry when he lashed out at the Company in the interview, he believes in its mission, and he doesn’t really think it’s a Ponzi scheme. And, he would like his job back.

Citing Hawaii Tribune-Herald, the Board said Neel was entitled to a reinstatement offer unless the employer could prove he engaged in post-discharge conduct that made him unfit for further service or showed he would be a threat to the employer’s operations. Under this standard, the Board has characterized the denial of reinstatement as warranted only in extraordinary situations such as “have been found to exist where the [employee] threatened to kill someone…intentionally struck a supervisor with an automobile…and threatened to report a probation violation in order to influence a witness’s testimony during a Board Hearing.” Following those examples, apparently reinstatement is warranted unless the employee is currently in prison.