NO handbook!
bgrimes
45 Posts
I am really going to reveal some stuff that I don't condone, but nevertheless, I've got to deal with day to day. I'm the one who is about to experience their 'first EEOC situation'. Aside from the anxiety brought on by THAT, there is some background info that makes this even worse. My CEO will not allow us to have a handbook. I understand that the EEOC may request this. There is one that was worked on a year ago, but was never presented to the managers or employees. I don't think this is going to over well with the EEOC. In other words, we have some 'rules' to go by that the employees have never been made aware of except for 'good common sense'. A resonable person knows they can't miss a ton of work and still expect to never be disciplined. We let our former receptionist go after missing alot of work. We feel that this 'position' must be manned at all times. When she was not here, it was indeed a problem. Others may have been absent an equal amount, but were not disciplined because their job status allowed them to make up the time. The receptionist was a female over 40. My Main Question: Should I tell the EEOC we don't provide handbooks? Or...should I give them the handbook that hasn't been distributed? Question #2: If I think it would be worse to go through 'the full blown investigation, would I be better off to ask for 'mediation'? We sincerely did not let her go due to her age as she claims, it was solely due to her absenteeism in a 'key' position. We have hired several 'mature'employees. I need to return the call to the EEOC representative. I don't want her to think I am procrastinating. "HELP!"
Comments
As long as the supervisor put the employee "on notice" about problems and set expectations (including spelling out some "standards" for attendance, conduct, etc.) and conequences if the employee didn't bring herself into compliance with those expecations, you should be okay -- assuming there as been some consistency in dealing with similarly-situated employees and that race, religion, etc. differentials can't be demonstrated. So, hopefully there are some memos or notes the supervisor did documenting discussions about work problems and setting those expectations.
Regarding investigation v. mediation. -- if you feel that you have a defensible case -- that the employer did NOT violate CRA, ADA, ADEA, etc. or did not act on race, religion, sex, etc., then go with the investigation. If you think you may have a problem then go with mediation. That's my gut opinion, but I don't know if those are a "winning" criteria.
On the mediation issue, I highly recommend offering to go through the process even if you believe you are "dead right" and have no intention of rehiring or paying a settlement. I find it particularly valuable for our organization (a quasi-state agency of about 350 employees) because we have no formal grievance policy. The EEOC (or other state human rights agency) process is not exactly like mediation of a lawsuit. Yes, the mediator would like to resolve the complaint before investigation, but these mediators don't tout their "settlement rates" to get business. Unless your ex-employee has gone through a grievance or appeal process with you, the mediation is an opportunity to hear her side of the story. In the case of missing work too much, it may be pretty cut and dried. But I look at it as free discovery - and if there are some bad facts I didn't know about, I would much rather learn them now than when it becomes a lawsuit.
Another good reason to participate in mediation is that sitting down face to face with her former employer may be what the ex-employee needs to put this behind her. Not everyone has the wherewithal -- emotional or financial -- to pursue litigation. A frank discussion of the reasons your company can't afford to have the receptionist missing for many days, with a representative high enough up in the company (the firing supervisor or director), may result in her reassessing her chances.
Finally, the reality of EEOC or other human rights agency mediations is that the mediator probably will talk to the investigator and communicate his or her view on the case. So, while mediators are not interested in you showing up to try to convince them that you did not discriminate, they will hear both sides by virtue of the process and will form opinions about the situation. The mediation is an opportunity for you to present the view that you acted reasonably in view of the facts. You can do this by laying this out to the ex employee, not proselytizing to the mediator. Play it meek, even ignorant (we are here to listen; we genuinely don't understand what we did wrong, don't feel we could have acted otherwise in this situation; tell us why you believe otherwise). I think your really strong card to play in this situation is that you couldn't afford to let this vital position go frequently vacant (one question may be: Who IS this person's back-up when she goes on breaks, takes vacation, etc? Everyone has to be off sometime).
At any rate, I am participating in a mediation this afternoon. If this one shoots holes in any of my ideas based on experience to date (and now I have jinxed myself, so it is bound to, no?) I will let you know.
1. Do not attempt to mislead the investigator. If the handbook that you have is in draft form, do not provide it. It is not against the law to operate a company without a handbook.
2. Dig up the circumstances surrounding the previous situations. You are open to a claim of being "arbitrary and capricious" it your company (not you) handle things one way for some people and another way for others.
3. Don't give up on your CEO. It took me over 20 drafts, 2 separate full reviews by outside counsel and 2+ years to get a handbook implemented at one of the companies for which I worked. Once implemented, don't forget to set up a periodic review of the policies, as they can go out of date quickly in some cases.
Good Luck, take a deep breath, say a prayer and GO FOR IT!!!