General manager Mike Andrews gathered up his paperwork as he spoke: “So, Jen, you’ll be sure to take care of everything involving Len Barker’s termination?”

“Sure, if that’s the decision you’ve made,” answered Jen Durso, the HR manager. “I would like to raise one issue before we proceed.”

“Go ahead, please,” Mike encouraged her.

“This termination is going to come less than 60 days after Len complained to the state about safety problems in the warehouse,” Jen noted. “That could look fishy.”

“Oh, that,” Mike nodded. “We did a thorough investigation about Len’s complaint. Even had an outside guy come in and look at it. We got a clean bill of health on that – no violation.”

“That’s true enough,” Jen agreed. “Still, it could look as if we’re firing Len because he complained about a safety issue.”

“As I see it,” Mike broke in, “there was no violation and we’re terminating Len clearly for performance, not the complaint.”

When Len was terminated, he filed a lawsuit charging the company acted out of retaliation for his safety-violation complaint. The company noted there was no violation and asked a judge to throw the case out of court. Did the company win?

The decision

No. The judge refused the company’s request to throw the case out and allowed it to go to trial – and a likely hefty cash settlement negotiated outside the courtroom.

The judge said the firing indeed looked suspicious, coming on the heels of Len’s complaint about a safety violation. When it looks suspicious, it goes to trial.

What about the fact that Len’s complaint ended up being nothing more than that – a complaint – and the company had committed no violation? Doesn’t matter, the judge explained. The employee doesn’t have to prove the validity of his complaint to show there was retaliation. He complained, and he got fired. Let a jury decide if one and one equal two.

One more thing, the judge noted: Safety complaints involve matters of “public policy” since possible violations affect more than just the single employee. As such, those complaints – even more than others – fall under special legal protections.

Important supporting docs
When an employee complains about something as serious as safety and then gets fired, your managers have to be certain to have the right documentation. There’s not much you can do to stop an employee who’s bent on suing, but you can prepare a good defense.

Cite: Kohrt v. MidAmerican Energy Co.

What happened:

While lifting boxes at work, a man suffered a back injury which required surgery. During his recovery, he was unable to work and received workers’ comp benefits.

The employee said that pain in his leg, which was a result of the back injury, forced him to walk with a limp and limited his activities. He claimed he could only “lift a little.”

But he was caught on tape picking up and swinging his grandchildren.

In addition, when the insurance carrier’s doctor saw him, he walked with a severe limp. But when the doctor watched him walk out to the parking lot, the limp had noticeably improved.

Benefits cut off — permanently

The Workers’ Compensation Board in New York State ruled to cut off his benefits. It also ruled to disqualify him from receiving any workers’ comp in the future.

The worker appealed the decision in a state court, but the decision was upheld.

Did the worker get what he deserved, or was the court’s ruling too harsh?

Cite: Church v. Arrow Electric (PDF)

Almost 25% of employees have disciplined workers for activities on Facebook, Twitter or LinkedIn, according to a recent survey by the Society of Corporate Compliance and Ethics (SCCE). Despite that, only half of companies said they have a social networking policy or monitor employees’ behavior.

The dangers of social networking misuse include:

1. damage to the company’s reputation
2. leak of confidential information, and
3. harassment (if an employee talks disparagingly about a co-worker, for example).

What does a good policy look like? It should cover two basic elements:

1. Make it clear that employees have no right to privacy when they post on a public social-networking site, no matter where they connect from. If it’s on the site and can be read, it can be used as grounds for discipline.
2. Remind employees that company policies (like anti-harassment) extend to online behavior.

Does your company have a social networking policy? What does it cover? Let use know in the comments section below.

You’d probably fire an employee who embarrasses the company online. What about someone who writes an inappropriate comment that never mentions his employer?

That’s happened recently at a Missouri school.

The St. Louis Post-Dispatch ran an online article asking readers, “What’s the craziest thing you’ve ever eaten?”

One reader posted a one-word reply. The word? A vulgar term for a female body part.

The comment was immediately deleted by a site administrator. Within minutes, though, it reappeared. The administrator looked up the commenter’s IP address and found the comment came from a local school.

Believing it was most likely a student who posted the juvenile response, the paper contacted the school. It turned out the comment was written by an employee.

He was confronted by the school’s headmaster and resigned, the Huffington Post reports.

It certainly wasn’t the first time an employee lost his or her job because of something written online. But in most cases, the firing takes place to protect the company’s reputation or prevent online harassment — for example, when employees bad-mouth their employer or a boss or co-worker.

In this situation, though, the comment couldn’t be traced back to the school by any other than the folks behind the scenes at the paper’s Web site.

However, if the employee worked with children (no word as of yet on what exactly the man’s job was), just posting the comment may have been enough for the school to want him gone. Also, using an employer’s equipment to write an obscenity is, of course, frowned upon.

What do you think? Is an anonymous vulgarity enough to cost an employee his job? Let us know what you think in the comments section below.

Question:
We learned through a local newspaper that one of our employees was arrested recently for DUI and drug possession. We’re concerned about workplace safety and other issues — his manager said there were suspicions that the employee had used drugs on the job.

What do we do now?

Answer:
Conduct an independent investigation, recommends employment-law attorney Roy Ginsburg.

First, talk to the employee about what happened. If you want to verify his version of the events, you could also get a copy of the police report.

Once you have the facts straight, speak with the employee and let him know you think he has a problem and that you want to help.

If he’s defensive, noncommittal or defiant, those are red flags. You might want to go to the next step, such as requiring that he take a drug test.

This year, 32% of employees say they’ll get a lot of their shopping done during office hours, according to a recent survey by CareerBuilder. That’s up from 29% last year.

And as most managers and HR pros know, if 32% admit to it, the actual number will likely be higher.

What should employers do about it? Well, most are probably used to it by now and will let all the visits to Amazon and other online stores slide. In a survey conducted last year by the Information Systems Audit and Control Association, 55% of IT managers said their company wasn’t doing anything to stop online shoppers.

Best bet: Treat productivity issues in December the same way you would any other time of the year.

The ruling now gives companies more power to discipline employees who don’t provide proper FMLA notification.

What happened

A worker took intermittent leave for migraines. The side effects of his medicine made him sleep — up to 27 hours at a time — and he knew it.

The man took two doses of meds prior to his shift, but he didn’t call to notify his supervisor that he needed an FMLA day. He slept through his entire shift.

When the company suspended him for 20 days, the man sued, claiming FMLA interference.

The company said he knew he needed FMLA leave — especially after taking the second dose. He could’ve notified the company prior to his absence but failed to do so.

What the court said

The court agreed, saying the man should’ve notified his supervisor as soon as he took his medicine.

Regs require workers to notify employers as soon as possible. The worker didn’t so his suspension wasn’t FMLA interference.

Cite: Valdivia v. BNSF Railway Co., U.S. Dist. Crt., ED KN, No. 07-2467-KHV, 2/12/09.

She went home, accessed the employer’s computer network remotely and deleted vital files, such as databases, accounting invoices, software applications and various backup files.

Problem was, the company knew it was her. So they told the police, who charged her with one count of unauthorized computer access.

She plead guilty and was sentenced to two years in jail, three years of supervised released and a $94,000 fine.

The company may have gotten justice, but it’s doubtful that’s worth the headache of having gone through the mess. Sabotage by disgruntled former employees is getting a lot of attention as a common security threat in this economy. Staying safe requires communication between HR and IT, so tech staffers know whose access to remove at what time.

In many situations, yes, as long as the documentation is in order. But here’s a case where a manager’s flexibility went too far — and got the company in big trouble:

A male bus driver was fired after dropping a student off at an unauthorized stop, in violation of the school district’s policy.

The problem: A few other drivers, all female, had broken the same rule but were never disciplined.

So the male driver sued, claiming he was fired because of his gender.

His manager argued the decision was partially based on the man’s previous performance — during his tenure, he’d been involved in one accident, and the school district had gotten several complaints about him from students’ parents.

His unauthorized stop was just the final straw.

What did the court think?

The judge sided with the employee. He presented a lot of evidence of how frequently the policy was broken. One female driver was caught making unauthorized stops on a regular basis for two years, without any disciplinary action.

The man did have problems in the past, but the school district couldn’t prove the rule had ever been taken seriously by management when female employees were involved.

The lesson for managers: You don’t have to treat every employee exactly the same, even when they violate the same policy. In some cases, such as when there’ve been previous behavior problems, the company might decide to fire an employee while only warning the other.

But firing someone while taking absolutely no action against anyone else is likely to lead to a discrimination lawsuit.

Cite: Dinkins v. Suffolk Transportation Services.

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The court ruled that since the man didn’t engage in “protected activity” – he didn’t file a charge, oppose a company practice or participate in an investigation – he had no basis on which to bring a retaliation claim.

Here’s what happened: A female employee of a steel manufacturer in Kentucky filed an Equal Employment Opportunity Commission (EEOC) complaint against her employer, saying she’d been discriminated against on account of her gender.

Then the company fired her fiance. He sued, saying he’d been fired because she filed the complaint. The appeals panel tossed the case, saying the law doesn’t “authorize a claim by a plaintiff who did not himself engage in protected activity.”

Good news for employers. Still, these are treacherous waters. In a separate concurring opinion, one judge wrote that had the woman filed the retaliation suit, it might have been successful – because firing her fiance would have been injurious to her.

Cite: Thompson v. North American Stainless

<<Previous Story ____ Next Story>>

This Week’s New Stories

1. Employer tossed biased test results – still hit hard in court
2. Manager was too flexible — company lands in court
3. DOL: Watch this legal pitfall in employee furloughs
4. Sexual orientation bias bill resurrected
5. Workplace was ‘like a guys’ locker room’ — but was it harassment?
6. Court: Firing complainant’s romantic partner not retaliation
7. Can you recover health premiums when employees don’t return from FMLA?
8. Layoff news causes heart attack — employee gets comp