When an employee is guilty of serious misconduct, an employer's natural reaction is often anger and disappointment. In smaller businesses particularly, where there is some sense of "family" or "community," there is often a sense of betrayal and disloyalty. Often the employer's initial response is to discharge the employee. As an employer, you may feel justified in immediately terminating the offending employee. You may even be justified. But should you make the decision to discharge in the heat of the moment? Not according to employment law experts. The experts say you need to keep your emotions in check, and follow your established discipline and discharge procedures, which should be clearly defined in written policies and communicated to your staff. Please note, this is a sensitive and complex area. Employers are strongly encouraged to consult with experienced counsel on these matters before taking action.
Be Sure to Investigate
Even if the evidence against the employee appears overwhelming, you should still investigate the matter in a businesslike manner. Clearly advise the employee regarding the allegations of wrongdoing. Then, allow the employee to provide his or her explanation of the events. If the employee's continued presence in the workplace threatens the well-being of your business, e.g., the employee is charged with theft, fighting, other violence, you may wish to suspend the employee subject to discharge and direct the employee to leave the premises. If the employee is exonerated, then the employee should be paid for the suspension period. If the employee is discharged he or she will not be paid for the suspension period.
Continue your investigation by collecting any physical evidence available, such as stolen property, drugs, alcohol, weapons, or other contraband. Interview all eyewitnesses and anyone else who may have information regarding the matter. Document your investigation in the offending employee's personnel file.
Evaluate Your Company's History with Similar Infractions
If the investigation clearly shows that the accused employee is guilty of the infraction alleged, determine whether employees who committed similar offenses in the past have been discharged or whether some lesser penalty was imposed. Even if you have discharged employees for the same infraction in the past, consider whether there are other factors that might mitigate the discharge, as discharge is the "capital punishment" of the workplace. Consider the employee's long term work record, whether the employee is under any particular personal stress that might be relevant, etc.
Limit Your Exposure to Discrimination Charges
Before making your final decision, consider whether the employee is in a "protected class" which might give the employee some basis for asserting a claim of discrimination based upon race, gender, age, religion, national origin, union activity, etc. Even though you may work hard to avoid discriminatory activity in your business, a manager, fellow employee, or someone else may have done something that could suggest discrimination. On the one hand, you do not want to be intimidated by threats of baseless claims and suits alleging discrimination. On the other hand, you must make an informed business decision as to whether there is any reasonable basis for a claim that the employee might seek to assert. Offending employees, of course, rarely recognize their own wrongdoing and often seek to blame someone else for their acts or omissions.
In determining whether there is any risk of a discrimination claim, look at the employee's personnel file, interview the employee's supervisor, and explore any other evidence available.
Examine Your Business-Wide Practices
You should also look carefully at your business-wide practices. Is there any neutral practice, e.g., a pen and paper test, educational requirements, etc., which might have a disparate impact on a protected group of employees? Also, consider whether you are at risk for any claims for unequal pay for men and women, failure to pay overtime pay, etc. Disgruntled employees may seek to dig something up that is companywide and not unique to them in order to retaliate for the discharge. If you think there is any risk of exposure, you should consult with a labor and employment attorney to review your documentation and determine your next steps.
Weigh Your Decision Carefully
In the end, you may decide that termination is warranted. When employees are guilty of workplace violence, theft, drug use, bringing weapons to work, and other acts that threaten the wellbeing of your workplace and other employees, the only effective solution may be to remove the employee from the workplace. However, firing first and asking questions later may create far more problems than it solves. While you may feel vindicated in the short term, in the long term you may have a lot to lose. Even in cases where company work rules clearly allow immediate dismissal in the event of a specific infraction, discipline and/or discharge should only be imposed after a careful investigation and consideration of all the circumstances.
If the Employee is Innocent
If you find that the employee is innocent of the infraction, the employee should be returned to the workforce as quickly as possible, and paid for the time missed. In the event of complete exoneration, all references to a disciplinary action should be removed from personnel files.
By following a dispassionate course even when you really want to discharge an offending employee, by taking the extra time to reconsider and investigate, you ensure fair treatment for your employees and, in the long run, you avoid costly mistakes.
