Long Service Problem Employee

System · July 2004

Here's my situation and reactions would be helpful. Employee A has been with us for 24 years in p/t and f/t capacities as a secretary or office assistant. She has been an attitude problem for years, which involves negative interpersonal relations with customers and co-workers. Very weak supervision in the past allowed this relationship to continue (she should have been sent packing long ago, but it did not happen). She has been in her current job for about 18 months with a new supervisor who is not going to tolerate attitude problems or abuse of work time. Employee A was informed that her work schedule would change to coincide better with office operations. When informed she became belligerent and left work to visit a psychologist, who provided a certification that she had to be off from work until 7/29/04. In the meantime, we find that she has spent siginficant amounts of work time surfing e-Bay and other non-business related work sites. This violates the computer/Internet usage policy and is a clear abuse of work time and not performing assigned work. After going on short-term disability, she files a grievance against her supervisor for proposing a work schedule change and claiming she has not been clear as to what her job involves. Documents in the record reflect differently. We plan to address her grievance through the various levels and then as that is concluded, we will address the issues of improper computer/Internet usage and abuse of work time. One thing at a time is the method here. My recommendation at this time is, after the grievance is concluded (which is essentially baseless, yet policy allows it to proceed), we will set forth the facts on the computer/abuse of work issues and issue disciplinary action in the form of termination or suspension w/o pay for up to 30 days. However, even though she has been a problem employee in the past, her record is not reflective of actions taken because supervisors of the past did not act. What is your take on this?

Gillian3 · July 2004

Do what you are planning. There is no way to speed up the process if you have public sector and/or union rules in place. You should probably be prepared to address the privacy issues revolving around finding out about the internet violations. Does your internet policy give you the right to investigate? Did the employee sign some sort of agreement that allows you to monitor? Did someone go on a crusade to "get her" based on other infractions? Not that any of that means anything in terms of what you plan to do, but it will be where the challenge will come from at a later date.

System · July 2004

You got it pegged. We are a public sector employer with very prescribed policies and processes. And, we do have a computer/Internet usage policy that is signed by each employee, and it is agreed to everytime the employees sign on to their computers. It does explicitly state that we have a right to monitor computer usage. In this case, it took place because of direct observances of her e-Bay surfing. So, we are within policy and our rights to monitor the usage. And, about the crusade to "get her", I don't see that as the case at this time, but it is generally recognized that she should not still be employed here. Nevertheless, she is still employed and that must all be kept in perspective. How have you handled very difficult personalities in the past - those who want to trump this up and throw everything at you for holding them accountable?

Gillian3 · July 2004

I am just finishing up an "interim" HR stint at a public sector employer shortly before my arrival there was an individual who received the intention to dismiss letter based on similar circumstances to yours. The arbitration took place a couple of weeks ago and I don't think that the result is back yet. His defense was that others do the same thing and they haven't been dealt with, therefore the District is picking on him. In my opinion, you don't back off these things and if the employee comes back, they come back, and if they do the same thing again, so should the employer. If the employee doesn't get the message, the employees who observe will so there is a benefit. I think that sometimes there is a tendency not to proceed because of the time consuming nature of the process and sometimes you lose. Dealing with the issues has a far better outcome.

Rockie · July 2004

If this was me in our particular organization and the documentation was weak, I'd start the documentation and disciplinary based on these recent infractions. I would clearly lay out what the expectations are for this employee to follow and what the repercussions will be if she does not follow them. I'd also get her to sign that she fully understands what all this means.

As far as bringing up "well, so and so does this..and nothing is done about that." My stock reply to employees who play this card is "We are not talking about so and so...we are talking about you...if there is something that needs addressing with so and so, it will be discussed with them."

deltadays · July 2004

I have always listened to whatever complaints the employee has that is outside of the issue and may act upon them. However, I remind them that the focus is on their current behavior and consequences for them are determined by their actions. That will not transcend or alter that that current behavior. We recently term'd an employee for excessive use of the Internet although he did have a final for that action from some years prior. If the person is long term, and has not received any prior warnings, to be honest, we would warn first and probably a final warning. Our experience in court has been that long term service does count unless the act was so aggresious. Is that spelled right?? Anyway, we are always a little more conservative than maybe most.

Crout · July 2004

If there is no documentation of her past performance issues, then you should start from square 1 and build a file, UNLESS she does something so outrageous that progressive discipline would be inappropriate. Do you normally terminate or suspend folks for internet usage, or are you jumping the gun because she's a pain and you want to get rid of her?

System · July 2004

Thanks, Crout. The record is very weak in documentation. That is a big problem, yet we also have documentation where she clearly knows what was doing with the computer is wrong and unacceptable. This situation is in fact the first computer usage violation we have had of this nature. So, the action here will set the stage for future actions. Yet, we want the punishment to fit the crime.

Beave · July 2004

Follow your course of proposed action and start the documentation process. I have no doubt, that given enough time, this employee will "hang" themselves.

System · July 2004

Thanks, Beave.

smaces_twin · July 2004

Do you fire people for surfing on E-Bay? I read that your policy allows that. If you've never had the situation and want to set a precedent, fire her. However, when you have a "good" employee do the same thing, your in a difficult positions if you don't fire them. I agree with the poster that said to start documenting and she'll eventually hang herself.

You asked how to deal with htese people. Define the unacceptable behavior, state the business reason it is unacceptable and get agreement to change. If they don't agree, or don't change their future behavior proceed with the disciplinary process.

System · July 2004

No, people are not fired, per se, for surfing on e-Bay; however,use of the computer for personal business is only permitted in small doses. It is a judgment thing for supervisors and policy is not specific as to time for personal use. Obviously, the computer leaves trails everywhere, either via e-mail or cookies, and when there are duties left unperformed and a person is observed during normal work hours on e-Bay, then it raises enough suspicion to check things out. In this case, over simply a two day time period (16 work hours), in excess of 5 work hours were spent transacting business on e-bay, business not related to the job.

I appreciate your response and reaction. You have emphasized the precedent to be set in this matter. And, you are absolutely correct about gaining agreement on how work is to be performed. Your thoughts are helpful.

Don D · July 2004

The conundrum is spotlighted in the following sentence from your post: "No, people are not fired, per se, for surfing on e-Bay; however,use of the computer for personal business is only permitted in small doses."

Regardless of what your written or stated policy is and regardless of your past practice and intention, you have a very weak position to defend. The words 'Per Se' and 'small doses' are as meaningless and indefensible as was the comment, "It depends on what the definition of is is." Any first year attorney will eat your lunch on the stand for terminating an employee, given this 'policy'.

smaces_twin · July 2004

On what basis would an attorney "eat his lunch", assuming this is their first case of observing internet use?

Don D · July 2004

Think about it. Picture yourself on the stand saying, "Well, actually, we don't or haven't or probably wouldn't terminate 'per se' for that, or what I meant to say, and I guess what we would do is...." or "Yes sir, we do feel an employee should be terminated for personal use of the internet and that's our firm policy. Sir? No, we do sometimes allow our employees to use the internet in 'small doses'. What's that mean? Well, you know, small doses, just sometimes, not a lot. What's a lot? Well..........." or "Why did I not conclude that this first time discovery was a 'small dose'? Well, I don't know, probably because I thought maybe he had been doing it and, no I had not known of him to do it before, and yes, this might have met my definition of 'small dose', but the policy is there and we haven't always used the 'small dose' theory...." x:-)

System · July 2004

This is all very interesting and very helpful. Don, I would not use the terms "per se" or "small doses" in the formal means of taking action. In the policy we have to administer on computer and Internet usage, it leaves room for management judgment as to what applies. In this specific case, 5 out of 16 work hours is certainly excessive by anyone's measure and we have the evidence in hand. With this being the first case under this policy, it seems that we may have a pretty strong case to act firmly. Now, I like your points about termination, and judging from the various responses submitted, it certainly appears that a strong progressive discipline approach is the most appropriate.

Interestingly, there is a great deal of game playing going on with this employee. She gets mad about a work schedule change, gets a doctor's (psychologist) statement to be out from work until July 29, goes on FMLA, files a grievance while away from the job about the schedule change,and is apparently aware that we have the data in hand about her computer usage during work hours. A long service employee in many respects should know better, but, again, previous weak supervision has left numerous matters of the past unaddressed. So, "eating my lunch" could occur even though I'd didn't buy the food.

System · July 2004

I haven't read all the other replies; but, here's my take on it. You have to be willing to suspend for 30 days without pay or terminate anyone else who has used email and the internet for personal use (or whatever your policy says). Even though your policy gives you the right to audit usage, did you audit anyone else? What was this person's "reasonable expectation" of privacy. She may be a bad employee but you can't simply collect other issues in your head and use them to treat her differently. If this is a first documented offense, I think 30 days or termination is way off. The only exception would be visiting porn sites or some other act of gross misconduct. I'm also guessing that if this employee has been with your firm for 24 years, she's in at least one protected class. Better be careful. . .

Sam

System · July 2004

Policy does not provide for a reasonable expectation of privacy as the agency can review the computer usage randomly or based upon complaint. It is not routinely done simply to play the "gotcha" game, but when situations arise that call for investigation, we will review computer usage and, in this case, we found very extensive misuse during working hours. This is the first time of an incident of this nature. However, we did make use of a work e-mail account last year to verify a very serious situation that resulted in the termination of an employee. I won't get into that matter, but we had to utilize the audit process to ascertain the extent of the problem found, and it was big. So, audits have been conducted of computer and e-mail usage, but action has been limited to those situations that are the most serious.

Your reaction and comments are appreciated, as it with all the others helps to clear the mind and to focus more clearly on what the issue really is and to not overdo the disciplinary action.

System · July 2004

No, your policy will not address a person's 'reasonable expectation' of privacy. The law will. If you checked her account only, you will need to establish a valid reason for checking hers. You can't simply decide that since she's out on leave and you think she's a bad employee anyway (no documentation that says she's a bad employee) that you'll just check her email to see what she's been up to. Another thing to think about: I may leave my computer set to the forum for several hours, but I may not be using my computer at all. If my employer deducts the forum hours from my production hours, it may show that I'm only working 1/2 a day. My gosh, if I leave it on overnight, I'm Cooked!

System · July 2004

In our particular policy, we are backed up by State law, which permits us to establish the "no expectation of privacy" provisions. A valid reason existed regarding her computer usage that permitted us to inspect her cookies and her e-mail. Numerous transactions with dates and times were conducted by her and are well documented. This was not done as a witch hunt since she went on leave. It was actually done before she went out on a doctor's excuse, yet, her abrupt leaving after being notified of a schedule change has precluded us from full addressing the issue with her. Additionally, the filing of a grievance calls for all parties to meet specified time frames, so we will deal with that issue first. There are some games being played to delay and distract. Yet, the issues remain and we will deal with them firmly and fairly. Upon her return, we will address the computer usage issue and present the evidence. My intent in sending this issue out for comment was to get a good feel for how others view this issue and I have received very helpful input. I thank everyone who has taken time to view this and respond. I am following much of your advice. THANKS to ALL.

Long Service Problem Employee

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