Question:
I didn’t know we had a problem in one of our branch offices until I got a letter from an attorney. A terminated employee alleges she complained about porn on a co-worker’s computer and sexual jokes told by other co-workers that her supervisor supposedly laughed at. She says she complained to the accounting manager charged with handling Human Resources not realizing that the manager was close friends with the supervisor. She says she got brushed off.
When I checked with the supervisor and accounting manager, both said the woman was fired for attendance problems and that the employee’s complaints had been appropriately handled and weren’t a factor in the employee’s firing.
Our attorney, however, told me we need to settle because it’s going to be difficult to prove we didn’t retaliate as the employee complained only weeks before her firing and we didn’t do a formal investigation of either complaint.
The accounting manager and supervisor are both angry that I’m considering settling, given that attendance problems are a valid reason to terminate under our company’s policies. We do rely on our managers and supervisors to fairly enforce policies and I believe the supervisor when he tells me the employee was a poor worker and a trouble-maker. What’s the best course of action?
Answer:
Immediately investigate the situation. Pull the employee’s records and find out the extent of her absenteeism and how your accounting manager and supervisors handle other employees with similar attendance problems.
Investigate both the joke-telling and the porn allegations and what your accounting manager and supervisor did to both look into and resolve these complaints. You need these facts before you and your attorney decide how to handle this situation.
You can soften the edges of your supervisor and accounting manager’s anger if you let them know they could be personally liable should this former employee take her case to trial. The May 2012 court ruling in Smith versus Bray confirms that HR managers and supervisors who participate in allegedly retaliatory firings can be individually sued.
Smith, a technician terminated for excessive absenteeism, sued both his manager and the company’s HR manager under federal statute Section 1981 which prohibits retaliation in contractual relationships, allows for uncapped damages and has a four-year statute of limitations. His supervisor settled. While the HR manager eventually prevailed by showing she had no retaliatory motive, she underwent a lengthy legal battle.
Although polices serve as a guideline, supervisors can’t apply them without looking at the situation’s other facts. Jeff Ellis Management recently learned this when firing lifeguard Tomas Lopez after Lopez swam 1500 feet outside the company’s protection zone to save a drowning man’s life.
Company supervisor Susan Ellis compounded the error by defending it on television saying “We have liability issues and can’t go out of the protected areas. What he did was his own decision. He knew the company rules and did what he thought he needed to do.” Meanwhile, supervisors investigating the situation terminated two other lifeguards for saying they would have made the same decision as Lopez. Two other lifeguards quit in protest.
After a widespread public outcry, the company offered to rehire the three terminated lifeguards. Although Lopez doesn’t want his job back, the two other guards could potentially sue their former company for firing them in retaliation for their statements.
What would have prevented problems for you and the lifeguard company? Companies need to thoroughly review any termination decision. In your case, while your employee potentially merited termination, the timing of her complaints gave her ammunition for a retaliation lawsuit.
Does this mean an employer can’t fire a complaining employee? No, it means the employer has to be able to prove it took the complaints seriously, that the complaints had no relationship to the employee’s later discipline and that the discipline was completely justified.
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