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Wednesday
Jul282010

A Teaching Lesson . . . .


Last week, many in the news media had their own spin on USDA director Shirley Sherrod's speech to an NAACP audience and the resulting fall-out.

Can this incident be used as a “teaching lesson” on race relations? Undoubtedly. It is also a lesson, however, on how not to react to a claim of employee misconduct.

Three steps follow on how to deal with employee misconduct issues. If the government had taken any one of these steps, things would not have spiraled out of control. If you always follow each of the three, you might avoid a costly employee lawsuit.

 

1. Avoid Summary Terminations. Never fire an employee on the spot. If you want to remove him or her from the workplace immediately, a “suspension pending investigation” is much safer.

This gives you time to properly investigate and document the reasons for termination. In the Sherrod case, the story was very different 24 hours after the initial reports. Simply waiting one day would have saved a lot of embarrassment for the government and distress for Ms. Sherrod.

It is not uncommon for matters to look different after the passage of one or more days. That alone is reason enough to avoid summary terminations. There are additional reasons as well.

Employee incidents are frequently witnessed by other employees. If interviewed shortly after the event takes place, those employees will give truthful information that can help you in the event of an employment dispute. Wait a while, however, and some of those witnesses may no longer be employed. Now, they may be upset with you and may tell a very different story. A suspension gives you time to document statements by others.

Did your mother tell you to “count to ten before getting upset?” This business attorney tells you to take a few days before firing an employee.

 

2. Provide Due Process. Treat employees fairly. This includes employees accused of misconduct. "Due process" is the best measure of fairness.

In Oregon, courts have ruled that all contracts have an implied obligation of good faith and fair dealing. That is, each party is obligated to treat the other parties fairly. This includes employment contracts.

Other courts have found an obligation for employers to treat employees fairly separate from this contract principle. Whatever the source of the responsibility, you have an obligation to treat employees fairly.

There also is a practical implication. Employees and former employees go to see an attorney when they feel they have been treated unfairly. The attorney will assert one or more claims on the employee’s behalf under any one of a number of legal causes of action. The judge or the jury will then base their verdict on whether they believe you treated the employee fairly.

Fairness is often equated with “due process.” This can be as simple as (1) telling the employee what they are accused of doing wrong, (2) allowing the employee to tell his or her side of the story, (3) asking the employee for the names of any additional people that should be interviewed, (4) asking the employee for any other information that should be considered and (5) following up on the names and information the employee suggests.

If Ms. Sherrod had been given due process, she never would have been fired (asked to resign). First, she would have been able to tell her side of the story, the full contents of her speech. Second, she might have submitted a written copy of her prepared remarks. And third, she would have asked that the full video of her speech be reviewed. If due process had been followed, there would have been no need for public apologies the next day.

 

3. Conduct an Impartial Investigation. Your investigation of employee misconduct is key to preventing employee lawsuits. It is the process by which the due process elements discussed above are followed. It is also your opportunity to document witness statements, gather supporting materials and demonstrate you treated the accused employee fairly.

To be effective your investigation must be impartial. It must be conducted by someone that has not made up their mind in advance or is experienced at making decisions solely based on the information before them. There must not be even a hint of a predetermined outcome. In many cases, this suggests having someone from outside your organization conduct the investigation.

You see this all the time in highly visible matters involving government or business. A credible outside person is selected to investigate so that others will have confidence in the outcome.

For private employers, there is also a line of cases from California holding that if outside legal counsel conducts an investigation and the employer relies on the result of that investigation in good faith, the employer is shielded from liability. That is true even if the outside counsel’s conclusion is later proved to be wrong. These cases demonstrate that a fair investigation, conducted by an impartial party can shield you from liability.

In the Sherrod matter, if someone from inside or outside the government had taken time to investigate the claims asserted against Ms. Sherrod, the result would have likely been very different for the reasons previously discussed.

 

You have heard it said, “there are two sides to every story.” That certainly is the case with the incident involving Ms. Sherrod. In your workplace too, it is important to give an employee an opportunity to tell his or her side of the story and treat the employee fairly before taking an adverse employment action. If you always do this, you might avoid being the next “teaching lesson.”

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