7 ms·

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

by harryh 11y 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 11y 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 11y 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 11y 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 11y 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 11y 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.
        harryh 11y ago
        I think we're pretty much on the same page here tbh. As I also was told, and believe, that being careful about the words "for cause" is almost always the right thing to do. I think it's pretty much only this series of steps that can get you into trouble: 1) Employee A claims that Employee B harassed them 2) Company doesn't put in any effort to hear Employee B's side of the story 3) Employee B is fired "for cause" for sexual harassment. Generally it's also not just the words here. It also comes with things like "no severance pay even though severance pay was typical for other fired employees." 4) It turns out that the original claim was bogus In this specific scenario, the company could have problems.
- bradleyjg 11y ago
  I didn't take any employment law classes in law school, and never practiced in that area, so take it for what it's worth. The thing that would set my potential liability antenna up is the "just hired" part. I have the vague recollection that there are some cases where courts have awarded damages in situations where someone is offered a job, quits current his job, moves across the country, etc., and then has the offer rescinded or is almost immediately let go. Good faith might well cure any potential problems, but if it were me I wouldn't be 100% confident just because I knew I was in a generally at-will state. Also, in response to something that came up further down the chain: at issue in a for cause / not for cause firing decision is eligibility for unemployment. When an employee collects unemployment it impacts the rates the employer pays going forward.
  - tptacek 11y ago
    Oh, good point, re unemployment. (Again: I think "for cause" is taking the drama a step too far).
  - refurb 11y ago
    Are you thinking of promissory estoppel? I'm not a lawyer by the way.
- kaitai 11y ago
  Yep. You can read more about these things at Ask A Manager (askamanager.com) and a continuous theme is that everyone is scared of wrongful termination, but that's really quite rare in the US. It involves breach of employment contract. (Lots of similar misconceptions about "protected class" as well.)
- balls187 11y ago
  > there is practically no such thing as wrongful termination in the US. This is true. However, there is nothing also that stops individuals from filing costly "wrongful termination suits" against a company. In my little slice of the managerial world, we spend time with HR to fully document performance lapses, ensuring we have written statements clearly indicating expectations and whether they are met, solely because if we were to be sued, we could show enough evidence that this individual was terminated because of a lack of performance, despite being given reasonable time to take corrective measures.
  - tptacek 11y ago
    If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits". In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully". In the US, unlawful termination occurs: * When it contravenes an explicit clause in your employment contract or an implied contract you accidentally created. * When it has the effect of discriminating against a protected class. * When it violates the ADA. Employers in the US generally have no obligation whatsoever to provide "reasonable time to take corrective measures". Things like PIPs have two purposes: * As an attempt to bulletproof firings that target ostensible members of a protected class * As a humane / bloodless way of notifying employees that they're about to be fired and should start looking for a new job.
    - balls187 11y ago
      > Employers in the US generally have no [legal] obligation whatsoever to provide "reasonable time to take corrective measures". They do, however, want to CYA. > In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully". And "unlawfully" is determined by the US Courts. > If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits". If by "safe" you mean "safe from litigation" then yes, that is a risk you take when terminating an employee. I'm certainly not advocating against firing people. I am saying that in my experience, I have to work with HR to have sufficient documentation.
ScottBurson 11y 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 11y 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 11y 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 11y 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 11y ago
  [deleted]
- slantyyz 11y 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 11y ago
    Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.
    - slantyyz 11y ago
      Ok. Where I live - Canada - it's very commonplace.
    - kaitai 11y 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 11y 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).

by harryh 11y ago

tptacek 11y 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 11y 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 11y 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 11y 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 11y 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.
      - harryh 11y ago
        I think we're pretty much on the same page here tbh. As I also was told, and believe, that being careful about the words "for cause" is almost always the right thing to do. I think it's pretty much only this series of steps that can get you into trouble: 1) Employee A claims that Employee B harassed them 2) Company doesn't put in any effort to hear Employee B's side of the story 3) Employee B is fired "for cause" for sexual harassment. Generally it's also not just the words here. It also comes with things like "no severance pay even though severance pay was typical for other fired employees." 4) It turns out that the original claim was bogus In this specific scenario, the company could have problems.
bradleyjg 11y ago
I didn't take any employment law classes in law school, and never practiced in that area, so take it for what it's worth. The thing that would set my potential liability antenna up is the "just hired" part. I have the vague recollection that there are some cases where courts have awarded damages in situations where someone is offered a job, quits current his job, moves across the country, etc., and then has the offer rescinded or is almost immediately let go. Good faith might well cure any potential problems, but if it were me I wouldn't be 100% confident just because I knew I was in a generally at-will state. Also, in response to something that came up further down the chain: at issue in a for cause / not for cause firing decision is eligibility for unemployment. When an employee collects unemployment it impacts the rates the employer pays going forward.
- tptacek 11y ago
  Oh, good point, re unemployment. (Again: I think "for cause" is taking the drama a step too far).
- refurb 11y ago
  Are you thinking of promissory estoppel? I'm not a lawyer by the way.
kaitai 11y ago
Yep. You can read more about these things at Ask A Manager (askamanager.com) and a continuous theme is that everyone is scared of wrongful termination, but that's really quite rare in the US. It involves breach of employment contract. (Lots of similar misconceptions about "protected class" as well.)
balls187 11y ago
> there is practically no such thing as wrongful termination in the US. This is true. However, there is nothing also that stops individuals from filing costly "wrongful termination suits" against a company. In my little slice of the managerial world, we spend time with HR to fully document performance lapses, ensuring we have written statements clearly indicating expectations and whether they are met, solely because if we were to be sued, we could show enough evidence that this individual was terminated because of a lack of performance, despite being given reasonable time to take corrective measures.
- tptacek 11y ago
  If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits". In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully". In the US, unlawful termination occurs: * When it contravenes an explicit clause in your employment contract or an implied contract you accidentally created. * When it has the effect of discriminating against a protected class. * When it violates the ADA. Employers in the US generally have no obligation whatsoever to provide "reasonable time to take corrective measures". Things like PIPs have two purposes: * As an attempt to bulletproof firings that target ostensible members of a protected class * As a humane / bloodless way of notifying employees that they're about to be fired and should start looking for a new job.
  - balls187 11y ago
    > Employers in the US generally have no [legal] obligation whatsoever to provide "reasonable time to take corrective measures". They do, however, want to CYA. > In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully". And "unlawfully" is determined by the US Courts. > If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits". If by "safe" you mean "safe from litigation" then yes, that is a risk you take when terminating an employee. I'm certainly not advocating against firing people. I am saying that in my experience, I have to work with HR to have sufficient documentation.

ScottBurson 11y 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 11y 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 11y 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 11y 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 11y ago
[deleted]
slantyyz 11y 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 11y ago
  Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.
  - slantyyz 11y ago
    Ok. Where I live - Canada - it's very commonplace.
  - kaitai 11y 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 11y 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).