Sticky situation

[font size="1" color="#FF0000"]LAST EDITED ON 01-14-03 AT 10:36AM (CST)[/font][p] I am in a situation where I know (or highly suspect) that an ex-employee was terminated for two different reasons, or I should say quite a few, that were not exactly legal. My boss was very angry that this employee was pregnant. The employee did apply and was approved for FMLA. She developed some complications but continued to work. The employee missed a few days because of this condition. At the time of termination she had missed a total of fourteen days, nine days for pregnancy related issues, five of those stemming from an injury at work (lifted something and started to bleed) and five due to a death in the family, three of those days where excused under our bereavement policy and two that the employee claims were approved by her supervisor but later, after the employee returned, my boss decided not to approve. My boss then decided to write the employee up for attendance. The speech she gave the employee was that every time she missed work the company had to pay someone else time and a half to do the same job we would have paid her to do for straight pay. The employee filed a complaint with the DOL for FMLA violations. When my boss found out, she went through the roof.

At that point my boss directed me to conduct all meetings with the employee. She told me what she wanted to relay at these meetings and I did so. These meetings were two to three times a week over a period of about a month. I don't care to go into detail about what was said at the meetings. After a few weeks my boss told me that a supervisor had alleged misconduct against the employee and I would need to terminate her. She wrote and signed the termination notice which I gave to the employee. Things went into a tail spin after this. The following day I asked about a copy of the investigation (because the employee stated she was going straight to the UC office upon leaving) and was told that there had been no investigation. The rule violation that the employee was accussed of was not a terminable offence and after I pulled the employee's file I realized the employee was not at the termination stage (I had only met the employee a few weeks earlier and had little background information on her). I passed this information on. The next day I was given a statement from the same supervisor with new accusations, none of which were listed on the termination notice I gave the employee and a write-up which was back dated to the day of termination. I was told that the employee refused to sign and put it in her personnel file.

The complaint that the employee filed with the DOL was eventually found to be in the employee's favor. The same week we received the notice of determination from the DOL my boss resigned (with company eleven years) and the Head of HR (two years) resigned a few months later. I received a notice yesterday from the PHRC. While my boss's name is not mentioned one time, my name is all over it. It claims gender discrimination, pregnancy discrimination, harassment, retaliation and FMLA violations ("not being investigatated as already verified by the DOL"). The employee is also claiming that her termination was caused, in part, due to a severe medical condition her unborn son had which our insurance would have had to pay for surgery to correct. I never knew of the birth defects until after the employee's termination but my boss did say that she was informed by the employee's physician the day before the employee's termination that there were some medical conditions with the baby. When my boss told me about the medical problems she said it was nothing and the employee just wanted attention. The company attorney said we need to put up a united front against these allegations. I do understand that but I have done some reading on the subject and have found that I may be held personally liable for this.

I don't want to go against my employer and say that I feel there MAY (I stress may because I am not certain) have been some illegal reasons for the termination but I also don't want to be held personally responsible. My employer has already said they will hire independant counsil for us if we are named as individual defendants but I am still concerned. There is a FFC scheduled for early spring. When I go to this meeting should I be honest about what I feel or should I just let the attorney's handle it?

Comments

  • 17 Comments sorted by Votes Date Added
  • You should be honest with the attorney up front and tell him/her the entire story. It sounds like the firm would be best off by settling early and minimizing their losses. Are you new to HR? Why didn't you question what was going on? Your boss used you to do her dirty work for her. Why didn't she handle this herself? I hope that you learned a lesson from this: namely, not everyone in HR is honest or even competent!!! There is nothing wrong with questioning what your boss wants you to do if it means a potential lawsuit. You are an employee of the company, not the boss. Keep this in mind in the future when you may be asked again to do something that sounds 'fishy'.


  • I agree with Mentel that we are employees of our companys. I have always maintained that as an HR professional, my primary responsibility is to protect my companys assets. This is best achieved through objective decision making based upon the facts of the situation while adhering to employment laws that may pertain. Our decisions may not always be popular, but they must be fair and impartial. I am surprised that your legal counsel would recommend "Putting up a united front" rather than immediately attempting to recitify this situation and/or settling. I cannot see a "united front" winning this one. I would settle asap.

    I don't know what the FFC is, but usually in lawsuits that I have been involved in, it is not uncommon for everyone who was remotely involved to be named even when they have left the company. The only one who ever ended up paying was the company. However, I would never lie or hedge in a deposition or hearing of any kind. You will be found out and it will make it worse for you and your company.

    Elizabeth


  • I have less than three years of experience in HR. I did go to the Head of HR when my boss insisted on writting the employee up for attendance. I didn't feel that we should write her up based on days that should have been covered under FMLA. I was told that it was my boss's call. He made it pretty clear that I had no buisness second guessing someone with her knowledge, experience and authority. From that point on I did as I was told. The FFC (Fact Finding Conference) is an informal meeting held by the PHRC to gather evidence about the allegations. There will be talk of a settlement at this meeting but the attorney is not going to offer much. I don't think she will take any settlement at this point (her ex works for the company and has made statements that she is "out for blood now"). I saw her in town a few months ago with her baby. I tried to make small talk with her but she told me to go to hell, so I know she is still pretty upset. I figured after almost two years she would have calmed down. She is clearly blaming me for all of this when I was simply following orders. I am already job hunting because I feel like this whole mess is going to fall on my lap. Sooner or later I will be out of a job.
  • This situation is more than sticky. If I were in your shoes, I would consider retaining my own attorney. Attorneys hired by your company may have an inherent conflict of interest, I think. Do not tell anyone in the company that you have hried your own attorney. I would also begin the composition of a complete narritive that details everything from start to finish. Do you have copies of any pertinent documents? I'm not advocating anything illegal, mind you, but your own file of documents just might come in handy. Good luck.
  • I am not going to rehash what you have said nor do I have any sagely advice. However I think this is a good time to remind everyone, that when and supervisory personnel wants an employee terminated or suspended we need to say " Sure no problem, but I need to see all the documentation." I have found that in about 1/2 of the times, at least, that there is no documentation. I am not saying that the individual did not do the wrongs alleged, but the supervisor usually fails to follow the discipline procedure.

    After being at my company oh say 4 months we had the topic of an employee come up with a senior person saying we need to get rid or him. He did this, did not do that etc. etc., this person had also just recently returned from a WC claim. I made the person outline everything, said sure if you have written him up for all that I will terminate today! The response: "Well I have not written him up for any of it". I said then I will not fire him. He was mad, I made it clear that I will fire anyone for cause, but, we will do it correctly, and do right by the employee and the company. They need to be informed what they need to correct, before we jump on the termination bandwagon.

    I have learned this the hard way too, going to terminate someone who has been "talked to" , terminated him, and then have him go on and on about never being talked to. I vowed never to get put in that situation again.

    I look at it that we need to review the situation to both make sure the employee was given a fair shake, and that procedures were followed, and two to consider how the situation would look to a jury.

    My $0.04 worth. (I went a little long)
    DJ The Balloonman
  • Although I want to do right by my company I have already considered obtaining my own attorney. As I said I only suspect the termination was based on illegal reasons. I only suspect this from the comments made by my boss and a review of the employee's file show no significant problems until after she became pregnant (three write-ups in five years and average to above average annual reviews). I have been considering telling exactly what I know and suspect but I don't want to do this unless I am sure I will not face any liability. At this point I'm not even sure how to go about doing this. The company attorney wants to try to fight it but I can't even see how we are going to do it. I know we are going to look pretty stupid when we try to explain that we terminated her for one reason, told the UC office another reason, a month later told them something else. The employee won her UC hearing and then the company attorney wrote an appeal stating that the employee quit (his decision, not ours, based on legal symantics). I've always been told that to prove discrimination one must prove that the reasons given were just a pretext for the true reason. If we can't even pin point a reason for the termination I think everyone will just assume it was for illegal reasons. Would it be wise for me to just go to the owners and explain what I witnessed and explain why I did what I did so they can make a decision based on that? I just know that I can't go into this telling lies and if the owners know the entire story they may be more willing to make an honest attempt at a settlement.
  • PAHr: My old HR advice is truth, truth, and more truth. I personally would take this situation to the owners, realizing of course, I have no idea how they will react or listen to my case. As previously mentioned build your case with the documents available at the time you took the directed action "to prepare termination documents and render the discussion with the ee". Also provide the owners with the made up documents. Be prepared to turn in your resignation if they will not do what is right and protect your efforts on this screwed up mess, commonly called a SNAFU! PORK
  • PAhr:
    Time to look out for your personal behind and get your personal attorney involved now on a confidential basis. You may not need him later, but if you do, you will be more than thankful for retaining him now. Looking out for the company is admirable, but it's your personal liability that should be your worry. By the by, does your company have employment practice liability insurance to pay in case this ex-'ee sues you and the company.? Time to find out, eh?
  • The company has insurance for itself and some key members of the company. The insurance will not cover me. And to Pork, I do believe you are giving excellent advice but in this situation we are about two years too late.
  • You are absolutely right that you may be held personally liable for retaliation and/or denying an employee their FMLA rights. I would certainly (1) gather any pertinent documents to this situation and keep them off site. (2) Write up everything in the order in which it occurred and attach the pertinent backup documents as you have outlined in your post. (3) Retain your personal attorney just in case and keep it to yourself (good advice from another post).

    Retaliation claims have escalated in the last couple of years and this is where the BIG money is for "wronged" employees and their attorneys.

    As far as termination of employees, I never put my stamp of approval on a termination until I see documentation on an employee.

    Sounds like you have a giant mess on your hands and I would take steps to personally protect myself.

    Good luck.
  • Rocky is right on the money. Get everything down in order of occurance with any documents that you can come up with. Keep it in a safe place. Talk to your own attorney. Get your resume up to date, NOW!!! Do you really want to work in a place like this? Honesty is ALWAYS the best policy. Don't lie for the company attorney or anyone else that asks you to. Remember, it is illegal to fire you for telling the truth. If they ask you to lie and you refuse, firing you is relatiation. Most states have whistle blower laws and don't tolerate this. I know that Wisconsin does! I personally would be tempted to go to the owners with a COPY of my documentation and lay it out for them. I would take my chances but I tend to be confident in what I feel is right and legal. You could turn out to be the HERO or you could become the scapegoat. Either way, you were the professional.
  • What happened to message number 10?
  • That is an excellent question.....:-?
  • [font size="1" color="#FF0000"]LAST EDITED ON 01-20-03 AT 10:22AM (CST)[/font][p]We had a meeting on post #10 on Friday morning and decided to delete the employee's post in light of the fact that this is a forum for employers. I notified the employee that I had deleted the post and encouraged her to resolve the situation through more appropriate measures. We've had several complaints about employees crashing the forum and are thinking of moving to a stricter registration process to protect employers' privacy. Many employers feel they can't put the facts of a situation out there to get feedback from other employers if they have to worry about employees or others finding their posts and jeapordizing their privacy. Even though this is a pretty remote possibility, this thread proves that it can happen.

    Sometime today or tomorrow, I am going to begin a discussion on this topic in the "How to Use Employers Forum" section. We need your input on how closely we restrict registration on the forum. Please stay tuned and watch for that discussion so you can offer your thoughts on the topic. I'd rather begin a new thread instead of branching off on this thread, so hang onto your thoughts and respond when I start the new thread or you can e-mail me at [email]webeditor@hrhero.com[/email] .

    Thanks!

    Christy Reeder
    Website Managing Editor
    [url]www.HRhero.com[/url]
  • Unless I'm mistaken, I thought anybody with the ability to type in a website could access and read the Forum, perhaps just couldn't join in the discussion. Am I wrong?
  • I'd really like your input on whether we should change or restrict the forum registration process. Please see the full discussion on what we should do about forum privacy issues in the "How to Use Employers Forum" section or link directly to it by going to:

    [url]http://www.hrhero.com/employersforum/DCForumID23/177.html#[/url]

    Christy Reeder
    Website Managing Editor
    [url]www.HRhero.com[/url]
  • I thought all of the Demerol was out of my system when I came in this morning. Reading through this entire thread makes me wonder. Pinch me, Christy. Or, Kick me, Ritaanz.
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