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Employment law: A "No Bad Apples Rule"?

The California Employee Rights Blog, put out by the plaintiff's-side Peters Law Group, had a very curious post last month endorsing an idea called the "No Bad Apples Rule":

Employers could avoid a LOT of lawsuits if they would just follow the "No Bad Apples Rule", which has its origins in a book written by Dr. Robert Sutton. ... The basic premise of this rule is that employers refuse to allow employees who are disruptive, excessively arrogant, rude or downright mean to work in their company. Often these employees are kept around because they are the top salesperson in the office or some other performance-based reason.

Gosh, that does sound like a good plan, doesn't it? Just identify the bad employees and show them the door. What could be simpler? And no doubt companies that identify and bounce antisocial team members do succeed in avoiding many lawsuits arising from customer and co-worker dissatisfaction.

But wait a minute. Isn't California one of the states that brought us modern employment law, with its array of legal doctrines creating new rights to sue an employer who -- perhaps on incomplete or less-than-objective evaluation -- decides that certain employees are "bad apples" and fires them? Isn't the decision to can an employee on such grounds as perceived arrogance, a high-conflict personality, "poor attitude", etc., exactly the sort of thing that a lawyer would seize on to portray as subjective and indefensible, most especially when actual performance as measured by output was adequate or better? And in fact, the annals of California employment law are full of instances in which exactly this sort of employee did sue when fired, and got past summary judgment with a wrongful-firing claim.

It's true that the California Supreme Court has pulled back a good deal from its former enthusiasm for wrongful-firing litigation, with the result that employers are not in as much legal jeopardy as they once were if they try to eject the abrasive and uncooperative personalities from their payroll. But those pro-employer developments have taken place over the vociferous protests of plaintiff's-side employment lawyers. Is this the start of a new critique of employers for not firing enough?



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.