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How to Get Fired Twice

Posted by Frank Steinberg | Dec 09, 2006 | 0 Comments

The United States Court of Appeals for the Third Circuit recently ruled that an employer can fire an employee twice.  Yes, you read that right, twice.

As a sensible person you might be tempted to ask "isn't once enough?"  Not always, as the facts in Local 1776 v. Excel Corp. make clear.

On October 31, 2002, Excel Corporation suspended two of its employees, Sandra and Jose Diaz, for attempting to steal meat using a stolen receipt.  The next day, November 1, Excel fired both Sandra and Jose.  When Jose was informed of his termination he reacted violently by attacking an Excel security guard and breaking two of his ribs.

Local 1776 grieved the terminations and the parties selected an arbitrator.  Excel responded to the grievance by recounting both incidents: (1) the attempted theft, and (2) Jose's attack on the security guard.

The arbitrator sustained the grievance on the attempted theft, ruling that Excel did not establish just cause for the terminations on that issue.  He ordered that Sandra and Jose be reinstated and paid all lost wages.  However, the arbitrator declined to rule on the assault charge. 

As soon as the arbitrator ruled (about a year and a half after the actual event), Excel notified Jose that since the arbitrator did not rule on the assault question, it was terminating his employment retroactive to November 1, 2002.  It paid him his lost wages for the period October 31 – November 1, 2002.  In response, Local 1776 filed suit to enforce the arbitrator's award.  In essence, Local 1776 contended that Excel was unlawfully attempting to do an end run around the arbitrator.

In a matter of first impression in the Third Circuit, the courts sided with Excel, holding that the assault constituted legitimate independent grounds to discharge Jose.  So the theft charge didn't stick, the assault did.  The first termination failed; the second succeeded.

And that's how you get fired twice.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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