Category Archives: Discipline and Discharge

Litigation by In-House Counsel, Quirky Question # 50

Quirky Question # 50:

We are a small to mid-size company, with a relatively small legal department.  We have a General Counsel.  He, in turn, supervises two other attorneys.  The General Counsel joined our company about two years ago, and frankly, his relationship with C-level executives has not been ideal.  His relationship with the CEO has been particularly strained.  The CEO has advised me (Head of HR) on several occasions that she just does not trust the General Counsel.  She has expressed doubts about his judgment, his advice, and, critically, his loyalty to the Company.

The CEO recently asked me to initiate the process to remove the General Counsel from our firm.  I don’t know whether this leaked out, but soon thereafter, the General Counsel began sharing with me his concerns about whether our company is complying with the law in a number of areas squarely within his area of expertise.  He advised me that he informed the CEO and CFO of his evaluation but they appear to be ignoring his advice.  I feel as though I’m caught in the middle.

Assuming that we follow through with our plans to terminate the General Counsel, do we have any risks?  My assumption is that everything he has been told in the course of his job is protected by the attorney-client privilege and could not be revealed in any lawsuit against the company.  Similarly, I assume that he could not contend that he was fired in retaliation for bringing the supposedly illegal activities to our executives’ attention, inasmuch the concerns he articulated are squarely within his job responsibilities as our chief legal officer.  Am I missing anything? Answer→

Firing An Employee for Having an Abortion, Quirky Question # 46

Quirky Question # 46:

We are a privately held company that runs a large software sales organization.  The family that started our company and that still dominates its executive ranks has conservative values.  Among those issues about which the owners feel strongly is the abortion issue.  They do not believe that women should have abortions under any circumstances.

One of our employees who was pregnant recently learned that there were serious problems with her unborn child.  Although her own life would not have been in jeopardy had she carried the child to term, her physicians recommended that she terminate the pregnancy.  She and her husband agonized over this decision but decided to follow the medical recommendations.

I am the HR Director and I have now been instructed to terminate our employee’s employment.  No explanation has been offered for why the company wants to discharge her.  I do know, however, that she has not previously had any performance problems.  To the contrary, she always has been highly regarded, a fact that is reflected in her glowing annual performance appraisals.  Moreover, the discharge decision is not being motivated by any economic downturn.  Our company is exceeding our year’s financial goals and no other employees are being laid off.

My instincts tell me the directive I have received is motivated by the fact that our employee decided to have an abortion, though no one specifically provided that explanation to me.  Nevertheless, this directive just does not sit well with me.  If I terminate her employment when she returns from the leave associated with the medical procedure and the funeral of her child, will I be exposing the company to risk? Answer→

Need for Search Warrant, Quirky Question # 36

Quirky Question # 36:

We recently learned that one of our employees has illegal pornography on his work computer.  We know we can discipline him (up to and including termination).The police recently requested a copy of his computer hard drive.  Can we turn the hard drive over to the authorities even if they do not have a search warrant?  Do we have to notify the employee that we are going to do so? Answer→

Quirky Question # 29, Maintaining Electronic Records

Quirky Question # 29:

Our company has offices in California.  This year we want to improve our document retention practices.  We’ve decided to maintain electronic records of personnel files.  Can we do this in California?  We were told that California law requires the records to be available at the job site.  If this is true, can we switch to an electronic database in California? Answer→

Email Communications with Lawyer, Quirky Question # 18

Quirky Question # 18:

We recently terminated one of our executives.  One of our standard practices when we terminate a senior executive is to check carefully his/her email communications for the preceding twelve months.  When we checked this executive’s email communications, we discovered approximately eight messages to and from a private law firm.  The message subject line was:  “Personal, My Discharge.”

We briefly skimmed these messages and found that they were communications between our former employee and her lawyer regarding her termination and potential claims she could bring against our company.  What can we do with information?  Can we share it with the company’s attorneys?  Was it a mistake for us even to have skimmed these emails?  (Incidentally, we have a “Computer Use Policy,” stating that the company owns all computer equipment and that we reserve the right to review any and all email communications sent on company computers.) Answer→

Disparaging Comments on Web, Quirky Question # 14

Quirky Question # 14:

One of our employees discovered fortuitously (by Googling his own name) that a co-worker down the hall has been posting messages to a Web-blog, in which he identified the employee by name and made graphic, negative sexual observations about him.  Not surprisingly, the two employees are not friends.  The subject of the comments had no idea that this conduct was going on and is worried about how these comments already have or will affect his reputation (both within the company and outside of it).

We intend to terminate the employee who placed the comments on the Blog.  Are there any risks associated with that discharge?  We also wonder what actions, if any, the company should take vis-’a-vis the employee about whom the comments were made?  Does that employee have any legal rights that could be asserted against either the company or the employee we expect to terminate? Answer→

Employee Cooperation in Investigations, Quirky Question # 9

Quirky Question # 9:

Two of our employees are involved in a romantic relationship.  We recently learned that our male employee assaulted our female employee at her apartment.  He was charged with domestic assault based on her report and convicted.

We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers.  She refused to answer our questions, claiming they invaded her privacy.  We do have a policy that requires cooperation with our investigations.  What options do we have?  Can we fire her for refusing to assist in our investigation? Answer→

Performance Evaluation, Quirky Question # 6

Quirky Question # 6:

Our company operates a call center.  One of our supervisors (Employee X) demonstrated two significant performance problems.  First, he was verbally abusive to the employees he supervised.  Second, he appeared to have a disproportionate number of “dropped” calls.  Our suspicion is that he put the callers on “hold,” and left them on “hold” until they hung up and called back, at which point the calls would roll over to someone else.  Since he was a long-term employee, we did not fire him.  Instead, we provided him a probationary letter, demoted him, and increased our supervision of his performance.  In the two months since we made these changes, he has performed quite well.  Coincidentally, at the end of the two-month period, X’s annual performance evaluation occurred.

The person responsible for X’s review is one of his close friends, both at work and outside the workplace .  He based his review of X’s performance on the last 60 days, which he justified to us as designed to “encourage” rather than “discourage” X.  The review was very positive and ignored the problems that were exhibited through the vast majority of the review period (10 months of the year).  The manager provided the review to X and had him sign it.  When the manager who conducted the review asked his own supervisor to sign off on the review document, the crap hit the fan.

The senior manager insisted that we re-write the review, which we have done.  The review now reflects the full year’s performance, including the serious problems that were identified before X was placed on probation and demoted.  We provided the new review to X, informing him that the earlier document was not reflective of his entire year and would not be placed in his personnel file.  I have the original review (there are no copies).  Now, X is telling me he wants a copy of this review as it is his “legal right” since he signed it.  Do I have to give him a copy of the first review? Answer→

Executive Termination, Quirky Question # 1

Quirky Question # 1:

We recently terminated one of our executives “without cause.”  Under his employment contract, we are obligated to pay one year’s severance for terminations without cause.  In contrast, we have no obligation to pay him anything if he is terminated “with cause.”  Following his departure, we reviewed his computer hard drive.  We discovered two areas of concern.

First, he had downloaded pornography onto his work computer, in violation of our clear policies regarding use of company computers and sexual harassment.  Second, much to our surprise, we found on his computer a substantial number of confidential documents that he had taken from the company where he worked before joining our firm.  This too violates our company policies – we strictly prohibit employees from introducing confidential, proprietary and trade secret information belonging to a former employer into our work place, whether in hard copy or electronic form.

Had we known these facts, we would have fired the executive for cause.  Do we still have to pay him his one year severance pay? Answer→