September 2012

By: James B. Sherman, Esq.

Every employer eventually faces a situation where an employee who receives a disciplinary notice, refuses to sign. Managers, of course, want the employee’s signature to demonstrate that the discipline/warning was given on a certain date. This serves not only to prove the employee received counseling over some problem but also to create a record in case further discipline, including discharge, is later warranted. Two recent decisions from the Minnesota Court of Appeals provide guidance for employers on what to do when an employee refuses to sign to acknowledge a disciplinary notice. In fact, the court determined that an employee’s refusal to sign was itself misconduct justifying termination while also rendering the employee ineligible for unemployment compensation benefits.

Both cases involved an employee who was written up for a violation of company policy. After being written up, the employer asked the employee to sign an acknowledgement of receipt for the written warning and the employee refused. As a result, the employee was terminated for insubordination. Thereafter the employee applied for unemployment compensation, was denied for engaging in misconduct and appealed that denial to the Minnesota Court of Appeals.

On appeal, the court noted that generally if an employer’s request is reasonable and does not impose an unreasonably burden on the employee, the employee’s refusal to abide by the request is misconduct and will result in denial of unemployment compensation benefits. So at issue was whether an employer’s request that an employee sign an acknowledgement was reasonable. In these cases, the court determined the requests were reasonable.

Importantly, the court found that the employee was not being asked to agree with something the he believed to be false or misleading. Rather, the employer was requesting that the employee merely acknowledge that he was being written up, and further acknowledge that he agreed to abide by the policy in the future. Also important to the decision was the fact that the employers allowed the employee the opportunity to review the acknowledgement, was told that he could submit a rebuttal for the file if he disagreed with the contents of the write-up and that refusal to sign the acknowledgment could lead to further disciplinary action up to and including termination of employment. All of these facts provided evidence to the court that the employer’s request was reasonable, as opposed to requiring the employee to sign something with information that he did not agree with.

It is crucial that employers recognize that these decisions are in the context of determining misconduct for purpose of unemployment compensation and that disciplining an employee for refusing to sign other disciplinary write-ups may be subject to attack under different laws depending on the policy at issue and the facts and circumstances involved.

For sample language to include with your disciplinary write-up and acknowledgement that, under these cases, would permit you to insist an employee sign or find them guilty of insubordination thereby subjecting them to further disciplinary action including discharge, contact either James B. Sherman in Wessels Sherman’s Minneapolis office.