Termination - Falsification?

Hunter1 · February 2004

Eight month employee. Clerical position. "Great employee"
Leaves work on Tuesday after telling co-workers she has pain under her shoulder. She had also told co-workers on Monday that she had played raquetball over the weekend and was sore all over.
Drives self to ER. Lots of tests (heart, etc)
Following Wednesday, reports diagnosis: herniated disc. Work Comp. "Felt strain while reaching at work, told fellow employees"
We get WC carrier involved and they do investigation (We have a great WC carrier).
Fellow employees give written statements "Employee never mentioned anything to us about work related incident"
No record of mention of WC at ER.
Employee makes statement to investigator that she told co-workers and ER staff of work related incident.
Dr's notes one week after incident note: "problem not related to work"
WC carrier denies claim; employee has indicated she will make claim for STD (we haven't seen that claim yet). She'll have to claim 'not work related' in order to collect. If she does so, one claim or the other is false. At any rate, she will have appeal rights for the WC claim.
We will wait for the STD claim, but, do we terminate now for filing a false claim??? She remains off work at present.

LarryC · February 2004

I'm going to base my answer purly on what you have written, not knowing anything else about the situation.

It is so interesting when people unsuspectingly walk into traps that I would wait for this one to play out. So don't cut off your fun now that you've gotten everything wired and set to trip. I love it when the fish just jump right into the boat.

Whatever · February 2004

When she files STD claim, make sure you notify carrier of the WC claim.

Pearce · February 2004

You have a WC Carrier to evaluate that claim and presumably an STD carrier to evaluate that claim. You should of course provide any company related documentation to each of those, but maybe you should now forget for a moment why and address the absence. Are you subject to FMLA regulations? Provide the employee with normal FMLA request and certification forms. Sounds like a leave that would meet the standard of a serious health condition. No matter work related or not the employee may have other rights you are trampling on if you make a hasty judgement.

Hunter1 · February 2004

Pearce: That's why I posted, to get advice. Remember, she hasn't been here a year yet, so no FMLA. Of course, there's always ADA and the state equivalent, but my first reaction is that the apparent falsification of the injury and subsequent report should be grounds for termination. Thanks for your input, and to the others, as well.

ritaanz · February 2004

The employee has worked at the company for 8 months. Not long enough to qualify for FMLA.

Don D · February 2004

Termination would be a crap shoot. You'd have to assess what you know about the hearing forums (fora, sorry Ray) in your state and how they view terminations. EEOC, UI, state DOL, Work Comp retaliation, etc. It might not be heavy enough proof for you to base termination on falsification. All she has to say is, "Well, I thought at the time I had hurt it at work. I did feel a strain, a snap. I'm almost certain I told people around me. Perhaps they just didn't hear me." I think that counter would sink your argument that she falsified, even though we all probably agree that she did. And even though her comp claim has been denied, you would still be dealing with the probability that her attorney would charge you with retaliation for having file a comp claim. In some states, not mine, that is illegal. Watch those fora.

marc · February 2004

"Great Employee," but you want to terminate? Don's cautious approach appeals most to me, but since great employees are few and far between, wouldn't some alternative approach be more appropriate - perhaps a write up for trying to work the system. Even the doctor said not work related and in my experience, they usually bat hard for the EE. If the EE truly felt it was work related, wouldn't she be pressing much harder for the WC claim as opposed to the STD claim? I think you would be on solid enough ground to get something in the file - then she knows you are onto her and perhaps she would resume the habits that led to the "great employee" rating.

Hunter1 · February 2004

She was doing a great job, and we're all blown away by this turn of events. My concern about bringing her back is that in WI, aggravation of a pre-existing condition qualifies as a WC injury, and if she's shown a pre-disposition like this, I'm concerned that she'll pick up a paper clip the first day she's back and will aggravate the injury. Don is right though, there are many issues to be concerned about.

martman99 · February 2004

First, I assume she is "at-will"? FMLA does not apply as previously stated. But under ADA is this a "serious health condition"? And have you run down the process as to whether employee is still able to perform the essential functions of his/her job? Begin an "interactive process" yourself to ascertain the situation. Request further documentation from her medical treaters as well as follow-up information to keep you informed as to her medical status. Any restrictions? Can they be accomodated?, etc.

I agree if there is a perceived fraudulent claim being made, a write-up, at least, is in order. Do you have a progressive disciplinary program/procedure? Have you followed it. Is fraud specifically addressed in your policy(ies)

Bottom line, have open discussions with the employee and document her story and those with whom she communicated with and/or claims to have communciated her malady to.

Finally, if you do keep her on after determining she intentionally lied or attempted to commit fraud on the company, how will your employees perceive this?

Despite having a capable manager on our staff, we have decided to relieve her of her position due to lies she has been author to. Sounds harsh, however, the "team" now no longer trusts, respects or is loyal to her - She made her bed and now must lie in it!

Hatchetman · February 2004

I agree with Don and will add one more aspect to the issue of why it would be hard to argue falsificaiton.

She applied for Workers' Comp claiming job -relatedness. She explains it as Don describes. Adn then explains why she filed for STD: "The Workers' Comp carrier representing the compnay ruled that it is NOT job related. So, if the company is saying that it is not job related, then it falls under STD, which I appied for. I think it is job related, but I realized that I couldn't establish it because my doctor and the Worker's Comp say it isn't. So the only thing to do was to file for STD."

Thus the two filings given the differnt grounds for claims aren't necessarily inconsistent and don't necessarily reflect falsfication.

Hunter1 · February 2004

Hatchet: In a former life, were you an administrative law judge in WI? You sound like one I had for a case once. You, Don, and Mart, along with others make all the arguments I've had with myself. Yes, she is 'at will', yes we have a progressive discplinary policy, yes, we may need to start the interactive process at some point if this gets to be a long term situation, and, yes, the rest of the staff already doesn't trust her because she put them in the position of having to contradict her statements.
Oh, well, another day in the life of HR. And on Friday the thirteenth.

Balloonman · February 2004

The last few posts show the challenge you will face in trying to terminate for falsifying a report, claiming wc.
However if you have all decided that she needs to go, and she does not qualify for FMLA, well then I think you can use attendance as a valid reason to dismiss. Of course past practice and your policy will play a role in this........ :-)
My $0.02 worth.
DJ The Balloonman

Don D · February 2004

Watch those arguments with self. They can be destructive, especially in 8 degree weather.

Termination - Falsification?

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