5 Real HR Scenario with Solutions
1. SCENARIO
You have just terminated an employee
Within hours of the termination, the former employee has Facebook’d his many grievances about the company and his immediate supervisor. What is your advice about possible action toward the terminated employee?
SOLUTION
First, what I have learned from many years dealing with social media posts with disgruntled employees, the post is usually one and done. So, my typical advice is to let it ride. My main concern is the content of the posting from the terminated employee. Is there sufficient evidence to warrant an internal investigation to see if the terminated employee has a point?
Here is the other factor. What if current employees comment on the terminated employee’s post? That’s why you need a current social media policy—to be able to address that with your current employees. In summary, there are two things you can do about the post. First, contact Facebook directly—they will take it down. I’ve seen that with many clients. They do not want to be known as a vehicle for nastiness.
And second, if the former employee keeps posting, there are legal ways to get them to stop.
Cease and desist letter, defamation claim, breach of confidentiality and/or non-disparagement, and sharing trade secrets are all legal actions that can potentially be used to stop this behavior.
2. SCENARIO
You receive an anonymous letter advising that two employees of the company are actively using and abusing drugs.
An accusation is made that the abuse is happening at the workplace. There are 11 employees at this particular company location. What do you do?
SOLUTION
With all accusations of drug use on the job, you need to first analyze what they do for a living. In this case, the eleven employees were CDL drivers, transporting hazardous materials. So, for liability reasons, they needed to be tested as soon as possible. The letter came in at 8:00 a.m. and they were tested by 1:00 p.m. After the meeting, when we announced that we were going to be doing drug screening, one employee came up to me and said he was one that was “hot.” I still made him take the test because I wanted the data. In the past when I let people opt out of taking the drug test, they have come back later to say that I did not give them that opportunity. Two people did test positive for illegal substances, but they were not the people who were listed in the letter. So, never take anything for face value and get the data that you need to prove who is “hot” and who is not. The reason we could test everybody was we had solid polices for random and reasonable suspicion.
Kansas law does not have any direct statutes that place limitations on workplace drug testing. However, best practices should be followed to avoid claims based on other legal theories such as discrimination. For example, an employer may run into legal trouble based on who is tested or how the test is conducted.
3. SCENARIO
You have an employee (female) that feels she is being harassed and is working in a hostile work environment.
She comes to HR to provide this information, but she requests the information remain confidential. She does not want the HR department to act on her concerns at this time. What do you do or not do?
SOLUTION
You must act. When employees bring information to management and/or HR, you have the legal responsibility to follow-up on the complaint, regardless of their wishes to remain confidential or for you to not do anything about it. In this situation, once this employee left the employer, she sued and said that the client did not do anything, even though she requested that nothing be done. So, my recommendation is, when an employee comes to you and has a complaint, you disclose at that time that you must act upon it. You move forward with as much confidentiality as possible, but you must move forward.
4. SCENARIO
You have been contacted with concerns that a prospective employee has a felony in his background (10 years ago for child pornography; served 5 years in federal prison).
You do not want to hire this person based on his past record. Are you being discriminatory? What reason(s) do you give the prospective employee about not getting the job?
There may be specific rules concerning background checks within your organization. For example, if an employee has a background of child abuse, they cannot work with children. This tends to be required with public employers. With private employers, you have a lot more opportunity to hire employees with or without criminal histories. There are laws to protect candidates who have a criminal history. Here is the language from the EEOC
Federal law does not prohibit employees from asking about your criminal history. But federal EEO laws do prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII).1.Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).2.Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if:•They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND•They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.(U.S. Equal Employment Opportunity Commission, 2019
My recommendation for giving prospective employees a reason for getting the job or not getting the job is up to the employer, but less is best. At the end of the day, you selected the candidate because they were a better fit for the job.
5. SCENARIO
You have a current employee who has just returned from an extended leave for workers compensation.
Before he left, he had performance issues and now that he is back, the performance issues are continuing. Can you terminate this person with an open workers compensation claim?
SOLUTION
Yes. You can terminate employees with a current workers compensation claim, if you have the proper documentation to prove that you are terminating this employee because of performance issues. Even though the employee is terminated, the workers compensation claim remains open and the employee can always claim medical expenses, etc., on his/her original claim, regardless of whether he/she is employed or not.
Kansas recognizes a tort claim for retaliatory discharge. The elements of a claim for retaliatory discharge for workers compensation are: (1) the plaintiff filed a claim for workers compensation benefits or sustained an injury for which he/she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff's workers compensation claim injury; (3) the employer terminated the plaintiff's employment; and (4) a causal connection existed between the protected activity or injury and the termination.
