Racial Harassment & Voluntary Resignation???

djacobs475 · February 2003

Two weeks ago, an EE came to me to file a formal complaint of Racial Harassment, and then went on his planned vacation (to his hometown in Georgia) . I promptly investigated and found he was right. The harasser was terminated - based on this flagrant incident and another incident which came to light by another ee of sexual harassment. This week all ees are being formally trained on Workplace Harassment and Sexual Harassment.

The ee who filed the complaint doesn't have a clue as to the results of our investigation or our final determination. We haven't been able to get in touch with him. He was due back from his vacation on Monday - and still has not returned - nor has notified anyone about it. Here's the issue: under our company policy anyone who is absent for 3 days WITHOUT calling in is considered to have voluntarily resigned.

My question is because of the circumstances surrounding this situation, if we consider him as having voluntarily resigned - will we face any special liability?

By the way, the ee still owes us $400. in personal loans and about $400.'s worth of uniforms too.

I would greatly appreciate any advice.

Thank you.

Parabeagle · February 2003

[font size="1" color="#FF0000"]LAST EDITED ON 02-12-03 AT 10:48AM (CST)[/font][p]I would follow my policy. That issue is separate from the harassment complaint. When you were made aware of the alleged harassment, you acted swiftly and appropriately to correct the situation, as the law requires you to do. The fact that the complainant is on vacation and did not know the outcome of your investigation is irrelevant. I see no reason why you should carve out an exception to your policy merely because the individual made a complaint. Sure, he may show up on your doorstep, find out he no longer has a job and file suit claiming he was terminated for reporting harassment, but you have ample evidence to show that you did precisely what you should have done and he didn't follow your policy by not coming back to work when he was supposed to.

Don D · February 2003

Due to the circumstances, and coming down on the side of caution, I would send him an overnight registered letter advising him of his termination, if you happen to know the address where he is 'vacationing'. I suspect there's a chance that he left last week not intending to reappear. You get the right (wrong) jury pool and they may well buy his story that he was so devastated by the harassment that he went over to Georgia and checked in with mental health. Your certified letter might help with that if you also advise him in the letter that he will be terminated for policy violation effective _______ unless he can immediately show cause why he should not be and that notice should come to you immediately by telephone call.

HRsage · February 2003

I agree with Beagle. The two issues are separate. You acted accordingly in reponse to the claims, the EE returning from vacation is their own responsibility. Had the EE not made a claim there wouldn't be any issue about them not returning from vacation, you would have proceeded with the voluntary resignation. I would just double check that the EE didn't contact anybody to say they wouldn't coming back on Monday.

Dasher · February 2003

The issues are not related, to the extent that you must tie them together. You handled the first fairly, now handle the second as well. Follow the same policy you always follow (just make sure you have not made an exception in the past (i.e., set a precedent). If the employee is ill or has amnesia or something (not likely) you can always rescind the termination. I think I would write two letters -- one to advise the employee of the result of his complaint and another to terminate and state the policy of the company.
When all employees are treated fairly, things usually fall into place.

Gillian · February 2003

Don is correct and I say this with the experience of a lot of expert witness work in these areas. Do the extra - tell him in your certified letter that you will have no choice to assume that he has resigned if he doesn't communicate with you that you will have no choice but to assume that he has resigned. A jury will not recognize the subtlety of your merely following policy. They will expect to see greater care taken of the person who filed the complaint and will view "just following policy" as your washing your hands and saying - good riddance of a complainer. Trust me.

sandra_d · February 2003

From experience, I completely agree with both Don & Gillian!

Rockie · February 2003

You can almost bet that this individual has put the wheels in motion to file a complaint against you. Anything you do is going to seem like you are using your policy to get rid of him because he is a "troublemaker" and filed a complaint.

Don's advice is excellent. This is about all you can do to mitigate the damage - send the letter outlining the "no show" policy and give him the option to contact you. But, don't be surpised if you don't hear from him personally.

Nurse Recruiter · February 2003

From experience, I agree with Don and Gillian. I would take the extra care in this situation.

djacobs475 · February 2003

To all of you who replied to my post - -
Thanks - I appreciate all your input!
I sent the ee a certified return receipted letter advising him that he is in violation of our company policy and giving him a last chance to call us. We'll see what happens now...

Thanks again Parabeagle, Don D, HRsage, Dasher, Gillian, Sandra d, Rockie, and Nurse Recruiter.

Racial Harassment & Voluntary Resignation???

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