Archive for the ‘Rogue Employees’ Category

This week’s rogue employee is the Fed-Ex driver who was caught on tape throwing a customer’s computer monitor over a fence.

http://www.youtube.com/watch?v=PKUDTPbDhnA (over 4.6 million views at my last count).

A pretty minor incident, but in the age of video cameras and Youtube, the incident garnered great negative attention for Fed Ex.

There are two lessons here. One, employees who are out in the general public are subject to scrutiny. You should remind them that people are watching, and video cameras may be rolling. There is potential to embarrass themselves and the company.

The second lesson is that employees who work outside of your office can and will misbehave. It’s just human nature for some employees to slack off or act inappropriately while the boss isn’t watching. I’ve seen cases of employees who were playing poker when they should have been working, who were sexually harassing other employees, even employees who were working for another company on my client’s time.

You can’t watch employees all the time, nor would you want to. You want to give them the trust that they deserve. But if you suspect something, follow your gut and check up on your employees’ behavior outside of the office. Make unannounced visits to the worksite. Install GPS monitors on company vehicles. Call and check in with them. In short, give them the impression that they are not all on their own when they are outside of your office.

By Adam P. Whitney

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The Los Angeles Times has reported that Alexa Johzen Polar, a paralegal who worked at a law firm, allegedly stole a $19,000 check from her employer. Polar and her roommate then allegedly altered the check so that it was for $285,000 and deposited it into her roommate’s account. The two then went on a shopping spree in New York and put a large down payment on a multi-million dollar mansion. http://www.latimes.com/news/local/la-me-1213-shopping-spree-20111213,0,694439.story

Not exactly a criminal mastermind, Polar was easily caught. She actually had the gall to go to the bank to find out why the bank cut off her funds. Police arrested her at the bank.

Most embezzlers are much more clever than this, and are much harder to detect. Embezzlers are usually employees who you trust the most. They can be very creative in covering their tracks. Your best way to guard against embezzlement, other than being like Fox Mulder and trusting no one, is to have a good accountant look at your books and accounts every so often.

Embezzlement can destroy the business, and the owner. I’ve personally seen cases where the business not only suffered six figured losses, the owners had to reach into their personal assets to pay back clients whose money was being held by the business. Although you can sue an embezzler (and I have), unless he has significant tangible assets, you’ll never get all of your money back.

By Adam P. Whitney

I promise not all of these will be about sex, but I like to get people’s attention, so I’m sticking with the salacious stories again this week. Most of us in the Boston area have heard about the local school teacher who was discovered to have allegedly been a gay porn actor on the side. This doesn’t make him a bad person or even a bad teacher, but his background did bring negative publicity to his employer. Google “Malden teacher, porn actor” and you’ll get a lot of hits.

The takeaway here is that, in the internet age, anything that employees do can be easily discovered by anyone, including the media (the local news media uncovered this story). Employers have to be mindful of this, and have to remind their employees to be mindful of this. Careful employers search employment candidates on the internet before hiring, and more extensive background checks can also be done. While doing that can, theoretically, create legal exposure, many employers are willing to take that risk. Most employers want to just run their business and avoid controversy. That doesn’t always mean that you can automatically fire or refuse to hire an employee based on some information found in the internet. Take the above example, if the teacher ends up being fired, he could potentially have claims for discrimination, because sexual orientation is a protected class in Massachusetts (I’m not saying he would win, just that he has a potential claim). When you have any question, check with your employment attorney before making a hiring or firing decisions based on an internet or background check, or call me at 617.338.7000.

I’ve been thinking about giving notable examples of rogue employees from the popular press. So why not start with this one. Boston.com reported today that a stripper at the Glass Slipper in Boston may have caused some problems for her employer by not following a city ordinance that prevents physical contact between dancers and customers. The article is here:
http://www.boston.com/Boston/metrodesk/2011/12/boston-strip-club-could-face-sanctions-over-lap-dance/0bkmvq1aybdsoIsxPCmDSI/index.html?p1=Local_Links

Apparently, a $300 tip was enough of an inducement to ignore the city ordinance and, presumably, the club’s own rules. The employer could face fines or a suspension of its license. The takeaway here is that your employees are your agents. When they commit wrongdoings while performing their job duties, your company could be exposed (no pun intended) to government sanctions or civil liability. While you can never completely control your employees, make sure that they know the rules and laws of your industry and make sure that they are following them. If not, consider whether employing the rogue employee is worth the risk.

This week I have had a rash of clients dealing with ex-employees behaving badly. Employees who feel that they have been unfairly fired may want to cause harm to your company. And they know how to hit you where it hurts. A favorite devious tactic is to harm your business relationship with your clients or customers by badmouthing you, or by undermining your credibility. They do other devious things too. Once it gets to that point, or you see it about to get to that point, your options are merely brute force and damage control, which are certainly not mutually exclusive. Below, I’ll discuss how to handle these options. In a later post, I’ll discuss how to avoid getting to the point where you are left with these unenviable options.

The Brute Force Option

Clients often come to me after an employment relationship has ended badly and the ex-employee has gone rogue to harm the company. In my world, lawyers can write letters and file lawsuits, but there is not much else that they can do to stop the misbehavior of a rogue ex-employee. In appropriate circumstances, law enforcement can be involved.

I generally opt for the stern letter first. Some of my colleagues call these “nastygrams” because they are usually pretty threatening; some call them “cease and desist” letters. I call them “stop the nonsense” letters. A well-written stop the nonsense letter can actually be very effective. If the rogue ex-employee is told the specific legal exposure that he is creating for himself, many will realize that they are being self-destructive more than they are actually hurting the company. This letter has to be written very carefully (for a variety of reasons) to both show the employee the exposure he is creating for himself, as well as show the employee the way to avoid further exposure.

The brute force option of last resort is a lawsuit against the rogue ex-employee. In rare cases, these are necessary, but no one really wins these lawsuits, other than the lawyers collecting fees (I like collecting fees too, but only if the client has a fair chance to get a good result). Even if the employer obtains a total victory, it is very unlikely that the employer will collect significant damages. These cases can be bitter, hard-fought and expensive. No one will be happy in the end unless the employer has such significant resources that vindication is priceless. I usually try to talk clients out of these suits, but I will and have pursued them if they have merit. The fruitlessness of suits can also be true for many types of suits against rogue ex-employees, including embezzlers and trade secret thieves, but it is not always the case. I have some nice judgments against ex-employees, but a judgment is just a very expensive piece of paper that gives you some rights to collect from the assets of the ex-employee, if any.

Damage Control

You should know best how to perform damage control and protect your valuable relationships with your clients. Cut off the rogue ex-employee,s access to your e-mails, cell phones, computers, etc., etc. If possible, cut off all chains of communications that the ex-employee can have with your client (the stop the nonsense letters can direct the employee to not trespass onto your property or your clients’ property and to not contact your clients). If appropriate, inform the client in advance that you have a rogue ex-employee who may try to defame you. Apologize in advance and assure the client that you are dealing with it. The client will appreciate and understand this, and may even be an ally.

If you have a rogue ex-employee who you need help dealing with, call me at 617.338.7000.

By Adam P. Whitney

Say what? When I advise employers on termination issues, I am most comfortable approving a termination when the employee has committed serious misconduct, such as stealing from the company. However, even though Massachusetts is an at-will state, and employers usually are on safe grounds to fire an employee who has stolen from the company, there are exceptions.

Take the recent case brought by the EEOC against Walgreens. Walgreens fired a cashier who opened and ate a $1.39 bag of potato chips because she was suffering from low blood sugar, on account of her diabetes. The case was brought under the Americans with Disabilities Act. Walgreens apparently considered the employee’s actions to be stealing from the company. It is not reported whether there was an investigation prior to the termination. Some reports suggest that the employee planned to or did pay for the chips after the fact.

I won’t comment on who should win this claim without having more facts. What Walgreens should have done was to conduct an investigation, including especially questioning the employee. Given that she was reportedly an 18-year employee with no disciplinary problems, maybe Walgreens should have given her the benefit of the doubt. If she did plan to pay, then allowing her to grab the chips and eating them (and pay for them later) would likely be considered a reasonable accommodation.

In a written statement, the EEOC wrote that “[a]ccommodating [a] disability does not have to be expensive, but it may require an employer to be flexible and open-minded.” That is good advice, when you have an employee who may be considered disabled (which is now very broadly defined), you should always have reasonable accommodations in the back of your mind.

Another situation where you could be held liable for firing an employee for stealing is the case of disparate treatment. If, for example, you do not fire white employees who are caught stealing, but do fire a black employee who has committed the same offense, you could be held liable for racial discrimination. This was the theory that a plaintiff used in Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122 (1997).

Although the employee lost (after what must have been an expensive legal battle all the way to the highest court in Massachusetts) on factual grounds, the legal theory was sound. Employers must be careful to be consistent with their policies, especially in matters of discipline. Of course, this advice is contradictory to the lesson in the Walgreen’s case. As you will read elsewhere in my blog, sometimes disabled employees have to be treated differently. This fits in nicely with my theme – sometimes you’re damned if you do; damned if you don’t.

The takeaway here is that, maybe, you can never be sure that a termination will not lead to an expensive lawsuit. If you cannot fire an employee after you have determined that they were stealing with the company, when can you fire them? I’m not trying to be alarmist. The vast majority of employees who have allegedly stolen from the company can be safely fired. But, as you can see, that’s not always the case. If you do have any questions on whether you can terminate, and how to do it, call me at 617.338.7000.

By Adam P. Whitney, Esq.

Here’s a very interesting read from a fellow blogger, Attorney Jon Hyman, who has an excellent blog on employment law in Ohio: http://www.ohioemployerlawblog.com/2011/08/if-your-workplace-has-no-bra-thursday.html

As you can read from the post and the attached complaint, the employee alleges that her supervisor asked her sign a note agreeing that he could sexually harass her.

It should go without saying that an employee cannot be forced to waive her rights against sexual harassment. In limited circumstances, participation in sexual banter can be a defense to a sexual harassment claim, but it’s really a defense of last resort, because it is an admission of a sexually charged atmosphere. Moreover, even if an employee seems to participate in sexual banter or jokes or whatnot, the employee may feel that there is no choice other than to play along. Or, the employee may be terminated and suddenly find the banter offensive and hostile.

The takeaway is obvious. Don’t tolerate any kind of sexual banter in the workplace, unless you want to try your luck explaining to a government agency, judge or jury why it was okay to do so.

If you have any questions about sexual harassment, call me at 617.338.7000.

By Adam P. Whitney