4 ms·

Couldn't the company fire without cause to avoid the potential wrongful termination lawsuits? Or would the company remain exposed to a sexual harassment suit as

Couldn't the company fire without cause to avoid the potential wrongful termination lawsuits? Or would the company remain exposed to a sexual harassment suit as they couldn't prove they did something as a direct result of the incident.

logfromblammo 10y ago
Most of the companies I have worked for would likely do exactly that. The problem employee would be terminated as an ordinary cost-cutting layoff, and no one would be the wiser. The expedient solution is to be spineless and cover your own ass. It does not produce the desired behavior at higher levels, but the Nash equilibrium is to do it quietly and kick the can down the road for the next employer to deal with. This is exactly how the Catholic church and the Boy Scouts handled its pedophiles--cover it up and delay accountability indefinitely. If there may be a threat to sue, offer a severance package that precludes civil lawsuits. I was once laid off, and I suspect the reason for it was that the company did not want to pay off on my as-yet-unvested options at a time when the public stock was at an all-time high. I didn't sue, because the severance package was worth more to me than the potentially years-long litigation hassle. They, in turn, never admitted to any particular reason for laying me off. If I'm going to end up screwed either way, I'd prefer the method that allows me to get it over with and get on with my life the next day. The impetus to throw just enough money at the problem to make it disappear fuels some of the scams that prey on very large companies. This is closely related to the business model for patent trolls. If you ask for slightly less money than litigation would cost, you get quietly paid. Edit: Most civil cases don't go to trial, and I don't care enough about my own disposable post on the Internet to go look up legal citations as a tangentially interested non-lawyer just because some other disposable post on the Internet asked for them. My point was that corporate employers are amoral, and would prefer to handle a potentially hairy situation cheaply rather than ethically. The only points required are as follows. 1. It is possible that a recently terminated employee could sue the former employer; it even happens occasionally in real life. 2. Such a lawsuit has a nonzero cost to the employer (and also the ex-employee). 3. Therefore, the employer can theoretically save money by bribing the ex-employee with a lesser amount than in #2 to not sue. 4. This could potentially allow the ex-employee to escape the consequences of actions that may or may not have led to the termination. The general consensus among companies is to do the easy thing, not the right thing.
- tptacek 10y ago
  I believe the threat you're invoking --- from the accused harasser to the employee terminating using their privilege as an at-will employer, to sue for damages stemming from that termination --- is fictitious. Could you clarify by citing a case with this fact pattern which actually made it to trial? * At-will employee * No special contract terms tied to for-cause termination * Disputed or false accusation of harassment (or, if you like, any claim of harassment whatsoever --- or, really, any "cause" whatsoever) * Terminated, either formally for cause or for no cause * Claim of damages stemming from the termination itself
  - jcrben 10y ago
    I'm not sure what you're saying, but if you're asking about how an at-will harasser could win a wrongful termination case, it's worth noting that "at-will" does not actually mean you can "fire whenever for no reason". There are various exceptions; the most open-ended is probably an implied contract or an implied covenant of good faith. You might look at https://en.wikipedia.org/wiki/At-will_employment#Covenant_of_good_faith_and_fair_dealing_exceptions_.28a.k.a._.22implied-in-law.22_contracts.29 https://en.wikipedia.org/wiki/At-will_employment#Covenant_of... Regardless of whether the state recognizes an implied covenant of good faith, most states recognize that people can be fired illegally. It can easily come down to a "he said, she said" situation. And if your employee has a long history with the company or did important work, there is a decent chance they can pull together a story for why their firing was improper. Even if no damages are awarded, the attorney fees and time can be quite expensive. I do recall a specific case not to long ago in Alaska where a police officer sexually harassed a couple coworkers and then was reinstated by an arbitrator. You can read about it here: http://www.leagle.com/decision/In%20AKCO%2020150417013.xml/ALASKA%20POLICE%20STANDARDS%20COUNCIL%20v.%20PARCELL http://www.leagle.com/decision/In%20AKCO%2020150417013.xml/A... I doubt cases like the Alaska one above are all that uncommon, altho admittedly the collective bargaining agreement has a major impact. California, in particular, is a notoriously friendly place for employment litigation, moreso than Alaska.
    - tptacek 10y ago

logfromblammo 10y ago

Most of the companies I have worked for would likely do exactly that. The problem employee would be terminated as an ordinary cost-cutting layoff, and no one would be the wiser. The expedient solution is to be spineless and cover your own ass. It does not produce the desired behavior at higher levels, but the Nash equilibrium is to do it quietly and kick the can down the road for the next employer to deal with. This is exactly how the Catholic church and the Boy Scouts handled its pedophiles--cover it up and delay accountability indefinitely. If there may be a threat to sue, offer a severance package that precludes civil lawsuits. I was once laid off, and I suspect the reason for it was that the company did not want to pay off on my as-yet-unvested options at a time when the public stock was at an all-time high. I didn't sue, because the severance package was worth more to me than the potentially years-long litigation hassle. They, in turn, never admitted to any particular reason for laying me off. If I'm going to end up screwed either way, I'd prefer the method that allows me to get it over with and get on with my life the next day. The impetus to throw just enough money at the problem to make it disappear fuels some of the scams that prey on very large companies. This is closely related to the business model for patent trolls. If you ask for slightly less money than litigation would cost, you get quietly paid. Edit: Most civil cases don't go to trial, and I don't care enough about my own disposable post on the Internet to go look up legal citations as a tangentially interested non-lawyer just because some other disposable post on the Internet asked for them. My point was that corporate employers are amoral, and would prefer to handle a potentially hairy situation cheaply rather than ethically. The only points required are as follows. 1. It is possible that a recently terminated employee could sue the former employer; it even happens occasionally in real life. 2. Such a lawsuit has a nonzero cost to the employer (and also the ex-employee). 3. Therefore, the employer can theoretically save money by bribing the ex-employee with a lesser amount than in #2 to not sue. 4. This could potentially allow the ex-employee to escape the consequences of actions that may or may not have led to the termination. The general consensus among companies is to do the easy thing, not the right thing.

tptacek 10y ago
I believe the threat you're invoking --- from the accused harasser to the employee terminating using their privilege as an at-will employer, to sue for damages stemming from that termination --- is fictitious. Could you clarify by citing a case with this fact pattern which actually made it to trial? * At-will employee * No special contract terms tied to for-cause termination * Disputed or false accusation of harassment (or, if you like, any claim of harassment whatsoever --- or, really, any "cause" whatsoever) * Terminated, either formally for cause or for no cause * Claim of damages stemming from the termination itself
- jcrben 10y ago
  I'm not sure what you're saying, but if you're asking about how an at-will harasser could win a wrongful termination case, it's worth noting that "at-will" does not actually mean you can "fire whenever for no reason". There are various exceptions; the most open-ended is probably an implied contract or an implied covenant of good faith. You might look at https://en.wikipedia.org/wiki/At-will_employment#Covenant_of_good_faith_and_fair_dealing_exceptions_.28a.k.a._.22implied-in-law.22_contracts.29 https://en.wikipedia.org/wiki/At-will_employment#Covenant_of... Regardless of whether the state recognizes an implied covenant of good faith, most states recognize that people can be fired illegally. It can easily come down to a "he said, she said" situation. And if your employee has a long history with the company or did important work, there is a decent chance they can pull together a story for why their firing was improper. Even if no damages are awarded, the attorney fees and time can be quite expensive. I do recall a specific case not to long ago in Alaska where a police officer sexually harassed a couple coworkers and then was reinstated by an arbitrator. You can read about it here: http://www.leagle.com/decision/In%20AKCO%2020150417013.xml/ALASKA%20POLICE%20STANDARDS%20COUNCIL%20v.%20PARCELL http://www.leagle.com/decision/In%20AKCO%2020150417013.xml/A... I doubt cases like the Alaska one above are all that uncommon, altho admittedly the collective bargaining agreement has a major impact. California, in particular, is a notoriously friendly place for employment litigation, moreso than Alaska.
  - tptacek 10y ago