7 ms·

I can't upvote this enough. Patrick's advice is very sound. (Except, perhaps, for that last bit about what to say in an email to employees -- before sending an

I can't upvote this enough. Patrick's advice is very sound. (Except, perhaps, for that last bit about what to say in an email to employees -- before sending any such email, please refer to Patrick's earlier, superseding advice to "Lawyer Lawyer Lawyer." Let your lawyer basically dictate what your email will say.) There are ways of handling this that have been worked out through decades of practice and litigation. This is most certainly not an area to be winging it. And, with all due respect to the thoughtful posts on HN you'll encounter, you should always keep in mind that HN is not a free source of legal advice. Since this has now happened, you'll want to a) lawyer up; b) terminate the offending employee for cause; c) work with the lawyer to set up some sort of HR training for managers in how to appropriately handle these situations. It might also be time to reemphasize the employee handbook and make known your zero-tolerance policy towards harassment. (But again, consult a lawyer before doing so.)

harryh 10y ago
Just to add on a bit more you are probably right about "b) terminate the offending employee for cause" but before you do that you almost certainly have to give the employee a chance to respond to the accusations. If you just fire him before doing that you are likely opening yourself up to a lawsuit for wrongful termination. Yet again, this is something that a lawyer will help you handle correctly.
- tptacek 10y ago
  This is the second comment on the thread I've seen invoking "wrongful termination". By all means, get your lawyer to confirm this fact for you, but: assuming you had the bare minimum competent legal assistance in setting up your company and its hiring documents, there is practically no such thing as wrongful termination in the US. In particular: if it is lawful for you to fire someone at all, it is probably no less lawful to fire them over a good-faith mistake. Obviously, there are any number of things you can blunder into with your employment documents that can create a colorable claim for wrongful termination. But the reason everyone uses the same boilerplate legalese employment documents is precisely to avoid these kinds of claims, and to firmly establish at-will employment with no implied contracts of job security. If you think you have an argument that firing this bizdev guy is legally tenuous, I have bad news for you: in your company, it is also legally tenuous to fire a developer who has only ever managed to push code that rm'd your prod environment.
  - harryh 10y ago
    There are actually some legal gradients here. You are right that the OP almost certainly employs the BizDev guy as an at-will employee and can hence fire him at any time for no reason at all. However, if he is fired for cause ("Mr BizDev guy. You are being fired because you sexually harassed Jane Smith.") instead of just fired without a reason ("Mr BizDev guy. Your services are no longer needed here. Thank you for your service.") then that cause can definitely be questioned if proper procedures were not followed.
    - tptacek 10y ago
      I'm going to keep prodding. I, too, think the "with cause" thing doesn't add much to the solution to the problem --- if only because it just adds drama. But you can fire someone for cause, be wrong about the cause, and that termination can still be lawful. Can you be more specific about the recourse the terminated person would have in this situation?
      - harryh 10y ago
        OK first off I will 100% admit that I am not an expert in this area and hence could be wrong (going back to the previously agreed upon advice that "Lawyer up" is clearly the right thing to do). That having been said, I have received training, by a lawyer, about how to manage situations in which a sexual harassment claim has been made. In that training I was told that the accused employee has a right to hear and respond to the claims. Further if you punish them before giving them that chance you could be opening the company up to liability. Especially if you specifically fire them for harassment.
        tptacek 10y ago
        I'm not a lawyer either, but I believe that with the exception of defamation --- getting back to "be careful about the words 'for cause'" --- it's not true that you legally owe an accused employee process before terminating them. I think what you were told was false, or that you misunderstood it. I don't think that the victims of a false harassment claim are entitled to damages for their termination. I would welcome expert correction here. The slight research I've done here suggests that from a legal perspective, it's safer to terminate than not, even if you're concerned about the veracity of the accusation. I'm going to repeat that we're in firm agreement about not firing "for cause". You don't need cause to fire employees you've competently hired. It is definitely legally risky to provide negative references that include accusations of tortious behavior! Minimize drama, by all means.
- ScottBurson 10y ago
  > you almost certainly have to give the employee a chance to respond to the accusations If all the OP had was the claims of the harassed employee, you might have a point. But the OP claims to have seen the actual texts sent. IANAL, and of course a lawyer should be consulted, but I would be very surprised if there were any danger in firing the employee without further ado.
  - harryh 10y ago
    It turns out that trying to reason things out from what seems right and/or fair can get you in a lot of trouble. If you haven't received specific training on how to handle this sort of thing your instincts can absolutely lead you (and the company) in a bad direction.
  - UK-Al05 10y ago
    You can be extremely selective in the evidence you present. For all you know, they previously could have had "dirty talk" moments earlier. Fell out, and now retaliating. If you want to be properly moral and just about this? Then you need get his side of the argument and all the information. If you just want to reduce hassle, then yes just fire him.
- mc32 10y ago
  Why can't this person simply get fired. No cause. Even if you want to give them the benefit of doubt (which seems extremely unmerited, given the presented evidence) why would you want to employ someone who shows such poor judgement? This is not a college dorm room. This is a professional setting, and while it is natural for romances to take place, this is in very poor taste to say the least, and even if it had been in more accepted terms, poor timing -you don't just go up to coworkers like you do patrons in a bar/pub and start chatting them up. Why not fire without cause?
  - deleted 10y ago
    [deleted]
  - slantyyz 10y ago
    I'm wondering this too, mainly because the OP said "just hired". Most employment agreements have a probationary period (e.g., 3 months) where the employer can terminate the new hire without cause.
    - harryh 10y ago
      Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.
      - slantyyz 10y ago
        Ok. Where I live - Canada - it's very commonplace.
      - kaitai 10y ago
        Yes; most employment agreements in the US are at-will so you can fire an employee at any time without cause no matter what your seniority :)
        uxp 10y ago
        Absolutely correct. Most employment agreements in the US have an indefinite probationary period. Consider today your last day every day (speaking mostly in the financial sense).

harryh 10y ago

Just to add on a bit more you are probably right about "b) terminate the offending employee for cause" but before you do that you almost certainly have to give the employee a chance to respond to the accusations. If you just fire him before doing that you are likely opening yourself up to a lawsuit for wrongful termination. Yet again, this is something that a lawyer will help you handle correctly.

tptacek 10y ago
This is the second comment on the thread I've seen invoking "wrongful termination". By all means, get your lawyer to confirm this fact for you, but: assuming you had the bare minimum competent legal assistance in setting up your company and its hiring documents, there is practically no such thing as wrongful termination in the US. In particular: if it is lawful for you to fire someone at all, it is probably no less lawful to fire them over a good-faith mistake. Obviously, there are any number of things you can blunder into with your employment documents that can create a colorable claim for wrongful termination. But the reason everyone uses the same boilerplate legalese employment documents is precisely to avoid these kinds of claims, and to firmly establish at-will employment with no implied contracts of job security. If you think you have an argument that firing this bizdev guy is legally tenuous, I have bad news for you: in your company, it is also legally tenuous to fire a developer who has only ever managed to push code that rm'd your prod environment.
- harryh 10y ago
  There are actually some legal gradients here. You are right that the OP almost certainly employs the BizDev guy as an at-will employee and can hence fire him at any time for no reason at all. However, if he is fired for cause ("Mr BizDev guy. You are being fired because you sexually harassed Jane Smith.") instead of just fired without a reason ("Mr BizDev guy. Your services are no longer needed here. Thank you for your service.") then that cause can definitely be questioned if proper procedures were not followed.
  - tptacek 10y ago
    I'm going to keep prodding. I, too, think the "with cause" thing doesn't add much to the solution to the problem --- if only because it just adds drama. But you can fire someone for cause, be wrong about the cause, and that termination can still be lawful. Can you be more specific about the recourse the terminated person would have in this situation?
    - harryh 10y ago
      OK first off I will 100% admit that I am not an expert in this area and hence could be wrong (going back to the previously agreed upon advice that "Lawyer up" is clearly the right thing to do). That having been said, I have received training, by a lawyer, about how to manage situations in which a sexual harassment claim has been made. In that training I was told that the accused employee has a right to hear and respond to the claims. Further if you punish them before giving them that chance you could be opening the company up to liability. Especially if you specifically fire them for harassment.
      - tptacek 10y ago
        I'm not a lawyer either, but I believe that with the exception of defamation --- getting back to "be careful about the words 'for cause'" --- it's not true that you legally owe an accused employee process before terminating them. I think what you were told was false, or that you misunderstood it. I don't think that the victims of a false harassment claim are entitled to damages for their termination. I would welcome expert correction here. The slight research I've done here suggests that from a legal perspective, it's safer to terminate than not, even if you're concerned about the veracity of the accusation. I'm going to repeat that we're in firm agreement about not firing "for cause". You don't need cause to fire employees you've competently hired. It is definitely legally risky to provide negative references that include accusations of tortious behavior! Minimize drama, by all means.
ScottBurson 10y ago
> you almost certainly have to give the employee a chance to respond to the accusations If all the OP had was the claims of the harassed employee, you might have a point. But the OP claims to have seen the actual texts sent. IANAL, and of course a lawyer should be consulted, but I would be very surprised if there were any danger in firing the employee without further ado.
- harryh 10y ago
  It turns out that trying to reason things out from what seems right and/or fair can get you in a lot of trouble. If you haven't received specific training on how to handle this sort of thing your instincts can absolutely lead you (and the company) in a bad direction.
- UK-Al05 10y ago
  You can be extremely selective in the evidence you present. For all you know, they previously could have had "dirty talk" moments earlier. Fell out, and now retaliating. If you want to be properly moral and just about this? Then you need get his side of the argument and all the information. If you just want to reduce hassle, then yes just fire him.
mc32 10y ago
Why can't this person simply get fired. No cause. Even if you want to give them the benefit of doubt (which seems extremely unmerited, given the presented evidence) why would you want to employ someone who shows such poor judgement? This is not a college dorm room. This is a professional setting, and while it is natural for romances to take place, this is in very poor taste to say the least, and even if it had been in more accepted terms, poor timing -you don't just go up to coworkers like you do patrons in a bar/pub and start chatting them up. Why not fire without cause?
- deleted 10y ago
  [deleted]
- slantyyz 10y ago
  I'm wondering this too, mainly because the OP said "just hired". Most employment agreements have a probationary period (e.g., 3 months) where the employer can terminate the new hire without cause.
  - harryh 10y ago
    Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.
    - slantyyz 10y ago
      Ok. Where I live - Canada - it's very commonplace.
    - kaitai 10y ago
      Yes; most employment agreements in the US are at-will so you can fire an employee at any time without cause no matter what your seniority :)
      - uxp 10y ago
        Absolutely correct. Most employment agreements in the US have an indefinite probationary period. Consider today your last day every day (speaking mostly in the financial sense).