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:

• Have another person present to witness the discipline or termination. Employees are less likely to become violent if a witness is in the room.
• If you feel that violence is a possibility, notify security to stay alert.
• Be professional during the discipline and termination process and never respond emotionally to an emotional outburst from an employee.
• Never threaten or shame the employee at any time during the discipline or termination process even if the same is done to you.
• Do not meet with the employee in a location where others are unable to assist if the employee turns violent, but make certain that the discipline and termination are discreet.
• If a termination, present the employee with a final paycheck that thoroughly covers the final pay period and any accrued benefits.
• Keep the discipline or termination meeting succinct. The more time allowed, the more time anger and frustration can build.
• Remain alert after the termination is over; violence often occurs days or weeks after the firing when an employee returns to “settle the score.”

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:

• Select a trained investigator. A professional is less likely to make the mistakes that will require you to dispute their findings.
• Your policy on investigations should not only determine when an investigation is needed, but who should conduct the investigation. Selecting a panel of neutral investigators prior to any incident is a best practice.
• Your investigation policy must also incorporate a standard of review for investigations. It should state when and how an investigation is scrutinized.
• If you believe that an investigation was done poorly, appoint someone to review the investigation and, if necessary, perform a second investigation.
• Do not let your investigators draw conclusions. Your investigators should be fact-finders. Allow another body to make decisions of guilt or innocence based on the investigation report.

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.

 You can enforce your attendance policy and discipline employees for excessive absenteeism, even if an employee misses work for medical reasons.  Just make sure you consider potential obligations under the FMLA and ADA first. 

Q:         We have an employee who constantly is calling in sick, taking time off for doctor’s appointments, and leaving early.  These absences are very disruptive to our office, but we are concerned that they may be protected under the FMLA or ADA.  Can we discipline the employee for what we consider to be excessive absenteeism? 

A:         As a general rule, if an employee’s absences are in excess of your stated policy (for example, the employee has taken more paid days off than provided by your policy), you most likely can take whatever disciplinary action you feel is appropriate.  But, before taking any action, you should consider whether you have any obligations under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).

 Note, though, that simply because an employee has a doctor’s note to justify an absence, you may still consider the absence excessive if the employee has used all of the days allowed by your policies and the absence is not protected by the FMLA or ADA (see below). 

 However, you may have to disregard absences required for reasons covered by the FMLA and the ADA when determining whether an absence is excessive and discipline is required.  Both the FMLA and the ADA limit your right to discipline or discharge employees for absenteeism caused by a protected medical condition. 

 The FMLA requires covered employers (those with 50 or more employees and all public agencies and schools) to provide eligible employees with up to 12 weeks of unpaid, job-protected leave in any 12-month period, for the employee’s own or a family members serious health condition (and up to 26 weeks to care for a seriously ill or injured military family member injured in the line of duty).  In addition, you cannot discriminate against employees who take FMLA leave.  As a result, you cannot take an employee’s FMLA-covered leave into account under “no-fault” attendance policies or consider the absences “excessive” under your absenteeism policy. 

 So, if the employee’s absences are caused by a serious health condition protected by the FMLA, you should disregard any absences related to the condition.  Of course, you can require that the employee provide medical certification as allowed by the FMLA to substantiate the need for the time off under the FMLA.

 Similarly, the ADA, which applies to employers with 15 or more employees, requires covered employers to provide reasonable accommodations to qualified individuals with disabilities unless doing so would impose an undue hardship.  Reasonable accommodations may include part-time or modified work schedules, as well as unpaid leave.  The ADA, in effect, requires that these be considered “excused” absences or, in the case of no-fault attendance policies, not counted for purposes of determining if discipline is appropriate.  In addition, you may have to accommodate disabled employees by allowing them to take more unpaid leave than is provided by your leave policy unless this would impose an undue hardship on the operation of the business.  Thus, if your employee has a medical condition that meets the disability definition, then any absences related to it may be protected by the ADA.

 But, if you determine that the absences are not protected by the FMLA or the ADA, the best way to manage this type of absenteeism is to focus on the individual problem employee and follow a progressive discipline program. 

 For example, your supervisors should put the problem employee on notice, provide counseling about improving attendance, and document the warnings and steps taken.  Then, if the absenteeism continues, you are in a strong position to take needed corrective action to discipline, or even terminate, the employee according to your normal policies.

 A: If an employee fails to make a COBRA payment within the required time period, you may terminate her coverage.  As a general rule, an employee is entitled to a 45-day grace period to submit her first COBRA payment, measured from the date of election, and a 30-day grace period for all subsequent payments.  See 26 C.F.R. §54.4980B-8 (Q&A 5).  So, if her check bounces for the first payment, I would suggest notifying her of this fact and explaining that she must provide the payment within that 45-day period.  

 In addition, before you terminate her coverage, you (or your plan administrator) must give notice to each qualified beneficiary of the early termination of continuation coverage for nonpayment of premiums.  See 29 C.F.R. §2590.606-4(d)(1).  (This notice requirement is triggered when a plan cancels a beneficiary’s coverage prior to the maximum coverage period, such as for nonpayment or when the employer ceases to offer health care coverage.)  The notice must include the reason the coverage has terminated early, the date of coverage termination, and any conversion rights the beneficiary might have.  29 C.F.R. §2590.606-4(d)(2).  The regulations specify that the notice must be provided “as soon as practicable” following the administrator’s determination that coverage is terminating.  29 C.F.R. §2590.606-4(d)(3).

 Q: We have a client who wants to know what country our employees are from.  The client wants this information for security reasons.  Can we ask employees to provide this information, and then can we share it with clients?

 A: It generally is not a good idea to ask about an employee’s country of origin or to keep this information in personnel files or share it with third parties.   

The only issue employers should be concerned about regarding an employee’s country of origin is whether the employee is authorized to work in the United States and can complete a Form I-9 properly.  If you ask about an employee’s country of origin and then take any adverse action against the employee (for example denying a promotion, disciplining the employee, etc.), your actions could be interpreted as targeting the employee because of his background and open your organization to a national origin discrimination claim. 

Even when an employer is concerned about the origins for security purposes, a better approach is to conduct thorough background investigations of candidates to determine any actual security risks.  A background investigation, including checks of drivers’ licenses, references, and criminal history, should turn up any security risks without implicating the employee’s national origin.

The woman has two sisters who are breast cancer survivors and who tested positive for the BRCA2 gene, which is an indicator of potential breast cancer. After she underwent genetic testing and found that she also carried the BRCA2 gene, she had a double mastectomy as a preventative measure. Five months after her procedure, she was terminated. She alleges that her termination came after revealing to her employer that she carried the breast cancer gene.

According to her complaint, shortly after a positive performance review in August 2009, she revealed the results of her genetic test to her employer. About two months later she had the double mastectomy, and when she returned to work after her medical leave, her performance review in January was very negative, and some of her work was reassigned. She was terminated in March.

Typically, the EEOC will investigate and try to settle with the employer. If no settlement is reached, the EEOC may sue the employer, or may issue a “right to sue” letter, which states the former employee can hire an attorney and pursue the action in court. The outcome of this claim is not yet known.

Final regulations were to be issued on GINA, but have been delayed, leaving employers still looking for guidance on how to comply with the law. The employment provisions of the law went into effect November 21, 2009.