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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" i

by 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.
  - tptacek 11y ago
    I know we're going on and on here, and I want to say that I generally enjoy your comments and am not just trying to be the picky message board jerk I normally am. However: It is very unlikely that a competent hiring practice will generate implied contracts for severance pay. Employees are not generally entitled to severance. Awarding severance to one employee probably doesn't create an implied contract with other employees. I keep coming back to this (elsewhere on the thread, too): the reason legalese employment agreements always tend to look the same is that they are designed to settle all these issues up front. I learned this when I had briefly hoped to create a more humane employment contract and employment handbook at a previous job, only to find out that pretty much only a lawyer can write either of those two things. I think(?) the only thing at stake in a firing "for cause" is a later claim for defamation --- unless the terminated employee has a special contract which entitles them to things like severance unless terminated for cause.
    - harryh 11y ago
      > Awarding severance to one employee probably doesn't create an implied contract with other employees. I believe that this is incorrect. If you fire 10 employees in a row and they all get severance but then the 11th doesn't they absolutely can hire a lawyer and ask why and start digging into events that lead up to the firing. If it turns out that they were fired for sexual harassment without being given a chance to refute the claims and then it turns out that the claim might have been bogus the company is going to be in a bad spot. And it's probably going to end up paying out a 5 (or maybe 6) figure check to make the problem go away. (PS: totally understand that you aren't being a picky message board jerk. No worries at all)
      - tptacek 11y ago
        I am very, very interested in seeing documentation or expert opinion to back this up, because it implies that you can easily and accidentally create an implied contract for severance simply by offering one-off severance. That would imply that there's a legal disincentive to offer one-off severance (for instance, for a no-harm no-foul sorry-to-waste-your-time bad hire).
- chadnickbok 11y ago
  Your last point is something that I've stumbled across before, and something that it seems many folks (especially engineers) don't fully grasp. As I understand it, even "getting drunk and trash talking a previous employee" in front of the wrong people can be seen as impacting someone's employ-ability, and can land you in some difficult legal situations if you're high up enough. Essentially the only safe thing to say about past employees is nothing.
  - AOsborn 11y ago
    > Essentially the only safe thing to say about past employees is nothing. Yes. Also, even from a non-legal standpoint, such as future interaction with that employee or their contacts, whether that may be social, commercial or legal. Negative commments can't be unsaid and have a funny way of spreading to unintended parties.

by harryh 11y ago

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.
- tptacek 11y ago
  I know we're going on and on here, and I want to say that I generally enjoy your comments and am not just trying to be the picky message board jerk I normally am. However: It is very unlikely that a competent hiring practice will generate implied contracts for severance pay. Employees are not generally entitled to severance. Awarding severance to one employee probably doesn't create an implied contract with other employees. I keep coming back to this (elsewhere on the thread, too): the reason legalese employment agreements always tend to look the same is that they are designed to settle all these issues up front. I learned this when I had briefly hoped to create a more humane employment contract and employment handbook at a previous job, only to find out that pretty much only a lawyer can write either of those two things. I think(?) the only thing at stake in a firing "for cause" is a later claim for defamation --- unless the terminated employee has a special contract which entitles them to things like severance unless terminated for cause.
  - harryh 11y ago
    > Awarding severance to one employee probably doesn't create an implied contract with other employees. I believe that this is incorrect. If you fire 10 employees in a row and they all get severance but then the 11th doesn't they absolutely can hire a lawyer and ask why and start digging into events that lead up to the firing. If it turns out that they were fired for sexual harassment without being given a chance to refute the claims and then it turns out that the claim might have been bogus the company is going to be in a bad spot. And it's probably going to end up paying out a 5 (or maybe 6) figure check to make the problem go away. (PS: totally understand that you aren't being a picky message board jerk. No worries at all)
    - tptacek 11y ago
      I am very, very interested in seeing documentation or expert opinion to back this up, because it implies that you can easily and accidentally create an implied contract for severance simply by offering one-off severance. That would imply that there's a legal disincentive to offer one-off severance (for instance, for a no-harm no-foul sorry-to-waste-your-time bad hire).
chadnickbok 11y ago
Your last point is something that I've stumbled across before, and something that it seems many folks (especially engineers) don't fully grasp. As I understand it, even "getting drunk and trash talking a previous employee" in front of the wrong people can be seen as impacting someone's employ-ability, and can land you in some difficult legal situations if you're high up enough. Essentially the only safe thing to say about past employees is nothing.
- AOsborn 11y ago
  > Essentially the only safe thing to say about past employees is nothing. Yes. Also, even from a non-legal standpoint, such as future interaction with that employee or their contacts, whether that may be social, commercial or legal. Negative commments can't be unsaid and have a funny way of spreading to unintended parties.