Sticky situation
PAhr
165 Posts
[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?
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
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
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
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?
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.
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Christy Reeder
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Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]