| We have an employee who violated our Internet policy last year (spending too much time on non-work-related Internet sites during work hours), and we placed a warning note in his file after discussing the issue with him. Now, a year later, he has not had any further disciplinary problems. Should we maintain the warning note in his file or should we remove it in light of his improved performance?A: Most HR and legal experts agree that it is appropriate for employers to give less credence to past disciplinary actions when an employee’s performance has improved and a substantial period of time has passed, particularly when the disciplinary issues are relatively minor. However, they also advise against entirely removing memos or other disciplinary information from an employee’s personnel file.Here’s the rationale behind this approach. A progressive discipline policy applies increasingly more severe penalties based on whether the violation is a first, second, or on-going occurrence. Typically, both the severity of the problem and the length of time between incidents are considered when you discipline employees for repeat offenses. For relatively minor issues, many policies reduce the importance of previous incidents after a year or more has passed between occurrences. |
When we think of catastrophic employee violence, we often think of the employee that leaves work, returns armed and targets managers and employees alike for issues that have simmered and later trigger an irrationally violent response. As the story indicates, employees can also simply attack their manager when provoked.
There is no excuse for murder or any form of violence, but this story serves notice that bully behavior by managers can have life-changing consequences. But what of normal management behavior…can it make you a target of violence?
The answer is yes, especially when disciplining or terminating volatile employees.
Disciplining and terminating an employee generates stress. No one likes to be disciplined, and losing a job is considered a traumatic event for most. The result is that some employees, unable to cope, may become violent.
To prevent a violent episode, you need to anticipate how an employee may react to the stress of discipline or termination.
It is a safe practice to hope for the best and prepare for the worst. One way to start is by reflecting on how the employee responded to workplace stress in the past. If during times of stress the employee became emotional, made threats or became violent, then the risk that the employee may do the same again increases.
Like for so many things, preparation is key, and an important preparation step is to have a series of warnings in place prior to disciplining or terminating an employee, if possible. Obviously, not all poor work performance issues or wrongful behavior allows for a warning (theft, harassment e.g.). However, if a warning can be given, it not only guards the employer against litigation, but also helps the employee psychologically prepare for the fact that his or her performance at work is not going well.
In the event of a termination, keep in mind that an employee who feels like he or she has lost everything is the most likely to become violent . Whenever possible, you should consider structuring a termination so that the employee does not feel as if he or she has lost everything. For example, if possible, offer job placement, a continuation of benefits or a severance package.
Here are some more steps to take to guard against violence during a termination:
The Secretary of the United States Department of Agriculture, Tom Vilsack, personally apologized to USDA employee Shirley Sherrod after wrongly accusing her of racial statements and forcing her to resign. Vilsack accepted full responsibly and extended his profound apologies to Sherrod. In Vilsack’s words the decision to seek her resignation was “made in haste.”
Vilsack’s statement followed a public apology issued by the President, the United State’s chief spokesman, who admitted that the Secretary and others acted without knowing all the facts of the case.
Sherrod was forced to resign after a conservative blog released an edited video of remarks she made at a NAACP conference. The edited video gave the impression that Sherrod discriminated against a white male farmer by showing only her remarks that the farmer had acted superior to her and she had been tempted not to use the full force of her authority to help him.
In full context, Sherrod actually made clear that she was relating the story from the 1980s to demonstrate that she ultimately learned an important lesson from the situation – to disregard race. Apparently, the issue for Sherrod was about the “have and have nots” rather than race. The wife of the farmer stated that Sherrod helped save their family farm and was a friend for life. Catherine Dodge “Vilsack Apologized to Ousted USDA Official Over Firing, Offers Post Back,” www.bloomberg.com (July 21, 2010); Brian Montopoli, “Vilsack: I will have to Live With Shirley Sherrod Mistake, ” www.cbsnews.com (July 21, 2010).
Commentary and Checklist
This public blunder demonstrates the value of accurate and thorough internal investigations when employees are accused of wrongdoing.
Most internal investigations include interviews with the parties involved as well as witnesses. In the matter with Ms. Sherrod, the investigators failed to receive a statement from the accused. Instead they took the clip for face value and terminated based on the clip.
Employers should never make decisions “in haste” or based on partial facts. Only after the truth is determined should employers take steps to remedy the situation.
If investigators had reviewed the full tape and spoken to the alleged victim or his wife to determine the truth of the allegations in this case, they could have avoided the blunder.
Employers should have procedures in place to intake complaints and conduct workplace investigations. With standards in place, the employer is less likely to miss important information or make mistakes in the investigation that may cause more problems later.
In some high-risk matters, employers should consider turning investigations over to third-party investigators.
Here are some other tips to ensure effective investigations:
A final rule amending the regulations has been issued to provide that employers and recruiters or referrers for a fee who are required to complete and retain the Form I–9, Employment Eligibility Verification, may sign this form electronically and retain this form in an electronic format. This final rule makes minor changes to the interim final rule implemented in 2006, and is effective August 23, 2010.
Since November 6, 1986, all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, are required to verify the employment authorization and identity of all employees hired to work in the United States. These entities are responsible for the completion of a Form I–9, Employment Eligibility Verification, for each new employee, including United States citizens.
The completed Form I-9 is retained by the employer and it must be available for inspection upon a request by Immigration and Customs Enforcement (ICE) investigators or other authorized federal officials. Employers are required to retain a Form I–9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later.
If an employee does not complain to you about harassment, you don’t have to do anything about it, right? Wrong. You have a duty to investigate every potential harassment complaint you find out about, or risk facing a claim in court. Find out the steps to take to make sure you investigate properly.
Q: We have a female employee who has said informally to coworkers that she is being harassed by a male coworker. The HR manager has asked her to make a formal complaint, but she has refused. Will we properly fulfill our legal obligations if we ask her to sign a statement that she does not want to make a formal complaint? Are there other steps we should take?
A: A signed statement that the employee does not want to make an official complaint will not provide meaningful protection to your organization. If she later decides to pursue a harassment claim with the Equal Employment Opportunity Commission (EEOC) or the courts and she is able to show that she had indeed been harassed, they will penalize you for not taking appropriate steps to stop the problem.
Court cases have established that employers can be liable for failing to take prompt and effective action to eliminate known hostile work environments. The employee has put you on notice of a potential problem, even though she may not have followed your organization’s complaint procedures. Therefore, you should take action.
As a general rule, all harassment complaints should be investigated, even when the complaining employee requests that nothing be done or when the complaint is anonymous. (And of course, all forms of harassment, not just sexual harassment should be addressed since courts have consistently found that harassment of any member of a protected class is a form of illegal discrimination.) The investigation should be undertaken promptly and completed as quickly as possible, for several reasons.
First, the disruption caused by actual harassment or rumors can be substantial. In addition, as time passes, evidence can be lost and witnesses’ memories often become less accurate and subject to change. Furthermore, the longer a resolution is delayed, the more stressful the situation becomes for both the complaining employee and the accused harasser. As a result, delays can lead to subsequent legal claims for emotional distress. And, evolving case law has established that employers are liable for failing to take prompt and effective action to eliminate known hostile work environments. Therefore, investigations should be completed within a few days, if at all possible.
The process should provide a fair method so both sides can be heard and receive necessary information. Most experts recommend interviewing the complaining party first to ensure that all important details and witnesses are identified promptly. Investigators should be sensitive to the emotional nature of the investigation and should be prepared to deal with employee embarrassment and anger. They then need to be patient, but firm, in explaining that precise details are needed for an accurate investigation.
The interview of the alleged harasser may be even more difficult because of the natural instinct of the accused to be defensive. Therefore, interviewers must be objective and nonjudgmental and encourage the accused to respond to each allegation. The investigator also should explain the disciplinary action possible if the allegations are found to be true. However, investigators should not use threats to obtain information, but should explain matter-of-factly the consequences of not cooperating. Both parties should be told to avoid contact with one another, and you should implement measures to facilitate that outcome.
Witnesses also should be interviewed as soon as possible, and the investigator should tell other witnesses as little as possible about the details of the complaint and question them only on matters about which they are likely to have information. These precautions should reduce the employer’s exposure to later claims of defamation.
All responses should be documented and, if possible, statements should be put in writing and signed by the persons providing the information. In addition, all participants in the investigation should be reminded that their cooperation and confidentiality are required, that your policy prohibits retaliation, and that any retaliation should be reported immediately. Once you have completed your investigation, you should take appropriate disciplinary action to address any harassment discovered.
As a final recommendation, you also should consider discussing these issues with your attorney since you are dealing both with a volatile issue and constantly evolving law.