Employment Law Alliance Founder and CEO and Hirschfeld Kraemer LLP Partner Stephen J. Hirschfeld was quoted by Law360 in the article “5 Best Practices For Firing Bad Employees.” The piece details steps that employers should take when dealing with employees whose behavior is detrimental to a company while protecting themselves and the organization from discrimination or wrongful termination suits.
In the article, Hirschfeld discussed the importance of putting employees on notice of exactly what behavior and conduct the company deems to be inappropriate. Hirschfeld offered this, “It’s a company’s decision where the line should be drawn and what employees can and can’t do. The best way of defending against a wrongful termination or discrimination claim is demonstrating that a fired employee violated the company’s code of conduct.”
Hirschfeld noted that one strategy a company may want to employ is to revise its corporate code of conduct so as to better reflect the type of culture they are looking to foster. He noted that companies should clearly spell out what conduct they find unethical and unprofessional so as to make employees completely aware of expectations.
However, Hirschfeld offered, not every instance of employee misconduct involves discrimination or harassment, “Many employers are dealing with workplace bullies. These are people who are not engaging in discrimination or harassment, but they are engaging in mean-spirited conduct. It’s a boss who is verbally abusive or gets into a subordinate’s personal space to create an uncomfortable environment.”
Hirschfeld stressed the importance of being properly prepared before a company investigator interviews the accused. According to Hirschfeld, if an employee is accused of misconduct and is interviewed before the interviewer is thoroughly and properly prepared, it creates an opportunity for that employee to come up with a story or get someone to change their version of what happened. He suggests that a company should first review electronic evidence (such as emails) and speak with third parties who were witnesses to misconduct before speaking to the employee in question.
Hirschfeld notes, “If you’re going to get an admission, it’s likely going to be during the first interview with the accused,” he said. “If I found out someone was accused of a serious act of misconduct, such as sexual molestation or an assault, I would interview eye witnesses before I interview the accused because I’m more likely to get an admission if I can say, ‘I have four people who saw you.’”
To read the full article (subscription required), please click here.