Should I fire this person?

ksterling

Okay, here's the deal. I have an employee who has been an attitude problem since day 1. She started in March, and two weeks later she injured herself moving some boxes. It was a worker's comp issue, she had x-rays, wore a brace, and got better. After Memorial Day Weekend, she didn't return to work but left me a voice mail saying she had reinjured her knee and had to go to the doctor. Once it all came out, they told her that she needed orthoscopic knee surgery and that she would be out for a month on workers comp. The workers comp carrier looked at the forms the doctor filled out and the report, etc., and determined that it was NOT a workers comp injury. I have only found this out through my benefits administrator, and the employee has not contacted me directly. Since she's been out (now about 3 weeks), I have noticed thing after thing she told me was done but now I am finding that 99% of her work was never done. She played around, copped an attitude, and constantly emailed me and asked me if I was MAD AT HER!! To make matters worse, her mother in law works here and this employee has blamed the mother in law for the problems she is having with her job here. She told the m-i-l that she will never see her grandkids or her son again... The m-i-l is one of the best employees here, but it is tearing her up. She blames herself for these problems, but the employee is the reason this is all happening.

Now all I know is that her injury is not work related, and she has made no effort to contact me or show me doctor's reports since her surgery or anything. I called her this morning and left a voice mail (in it I was very pleasant and nice) and asked her to call me so we could discuss her return to work. What would you do? Please help!!!!!

Down_the_Middle

I don't see any basis for a discharge. This seems to me to be a disability issue where you now go down the path of determining work-related or non work-related injury. FMLA may be a valid issue, so don't lose sight of that based solely on the injury not covered by w/comp. I would gather more info to identify if FMLA applies and then proceed accordingly. It would appear that FMLA applies, so discharging this person as they're on the front steps of FMLA would be a serious mistake on your part. You may also be accused of retaliation toward an employee for filing a w/comp claim and in many states, this is a no-no. The performance issues you've recently identified are separate from the disability and should definately be addressed once she returns. Trying to deal with her "attitude" now will likely cause you more aggravation by displaying a knee-jerk reaction. I would focus on her medical condition, determine if FMLA applies and then once she's back at work address the other stuff you've learned.

Jackson

[font size="1" color="#FF0000"]LAST EDITED ON 06-20-01 AT 12:52PM (CST)[/font][p]I totally disagree with "down the middle". I DO see a reason for discharge. In her absence you have discovered that she has not done work assignments that she was responsible for. To make matters worse, she not only has neglected her duties but has also lied to you about them. If employers cannot dismiss an employee under these circumstances in an employment-at-will environment, then our fear of being sued prevents us from running our businesses as we should. Do not let fear blind you to the real issue here. This is not a disability issue. It is clearly a performance issue and that is how it should be handled. If she hasn't been doing her job, she shouldn't continue to freeload off your payroll. I once discovered that an employee on maternity leave had stuffed work in her desk drawers that should have been done long prior to her taking leave. An investigation showed that she had a pattern of hiding work instead of finishing it. Ironically, we would not have discovered this if she hadn't taken leave. The result was that I called her in from maternity leave and fired her. Her maternity situation was never addressed. It was a performance issue. I suggest that you check with legal counsel, but remember you're running a business, not a day care for irresponsible employees. (By the way, if this employee has only been employed by you since March, she doesn't qualify for FMLA anyway.)

Gar

I agree with Down-The-Middle. The attendance problem and performance problem should be treated as seperate matters. As soon as the employee returns to work, place her on a 60-day performance improvement plan. Monitor her performance to include regular (weekly), documented feedback and if she doesn't turn it around by the end of that period of time, fire her.

Gar

One more thing, FMLA doesn't apply in this situation because, according to you, the employee has only been with you since March. She had to have been employed by your firm 12 months to be covered by FMLA.

xsafford

Get her out of there right now! Not letting her go now will only make it harder later (and there will be a later). This kind of person does not improve with time. That she would make those threats to her mother-in-law should tell you that this is a profoundly twisted person.
For both performance and medical reasons she does not meet the need that hiring her was supposed to have met. I would suggest being completely impersonal about it. Just call her in, let her know that she has not met the requirements of her position (don't get anymore specific than that), and tell her she is let go. My guess is this person probably has a well established track record of this kind of conduct, and she knows the drill.
If you need bargaining leverage at some future point, you have both the ability to classify her termination as a resignation and/or to not challenge her unemployment insurance. My guess is if you act decisively know, she will move on to find a softer target somewhere else.

System

I totally agree with the other posts that you should terminate this employee. She's not eligible for FMLA, she doesn't appear to be in a "protected class", she's been dishonest, she didn't complete her work assignments, and keeping her on staff will destroy the moral of the workforce. It's like saying it's ok to act like that and still have a job with you.

Get rid of her on the basis of dishonesty and poor work performance. Personally, I would fight the inevitable unemployment fact-finding hearing, too. Why should she get to sit at home on her butt and collect unemployment?

As far as the work comp, advise your carrier you're terminating her so they can be prepared to handle the claim as a terminated employee.

Good luck!

tfevergrn

I had a similar situation where an employee who returned to work from worker's comp, on restricted duty, had another accident/injury at a place where they were taking care of personal business. She could not come to work and our adminstrator confirmed that this new injury was not work related. The worker's comp system was being milked and there were performance issues. So my out came about with this new injury and the employee was let go for not being eligible for FMLA, after they did not show up for work on the fourth day. They had not been employed with us for 12 months or had worked the 1,250 hours.

If your worker's comp carrier has truly determined that this employees knee injury is not work related and they are denying benefits, I feel it safer to take your out and terminate employment based on not being eligible for FMLA. Take the unemployment hit and have peace of mind.

tfevergrn

[font size="1" color="#FF0000"]LAST EDITED ON 06-21-01 AT 10:23AM (CST)[/font][p]One more thing to consider is if these performance issues just came to light while the employee is out on worker's comp and there is NO prior discipline (clean file), it will be hard to prove the reason for termination due to performance because you will be asked how you have handled employees with performance issues that came to light with no prior discipline (worker's comp claim employees or not). Chances are you began the discipline process and did not go directly to termination. In other words it will not look good if you did not give the employee the opportunity to improve the performance issues that just came to light, as they can claim they didn't know there were any issues.

Gillian

This is a "pick your poison" situation. You should evaluate the pro's and con's of firing her or bringing her back and putting her on a performance plan. There are some downsides to firing her precipitously. The fact that there was a workers comp. issue earlier plays a role because an enterprising attorney could try to make the case that she was terminated because of filing a workers comp. case. Probably won't hold up but you would have to go through the process of fighting the allegations. Depending on where you are, her current injury could create a problem if you terminate her. Terminating someone who is out with an injury might present a problem for those of us in California. The downsides to bringing her back include the probable morale problems for others. After you think it through ask yourself the question. Is firing her now worth the cost in terms of money and hassle? Is it better to bring her back and set the standards, then dismiss her if, probably when, she fails?, because then you would be dismissing her based on a failure to perform without all the extenuating circumstances.

Gar

To Gillian: Amen!

Tricia

Definitely get rid of this one!!! These are the type of employees who make us doubt everyone! One question, do you have a 90-day probationary period? If so, and you are in an at-will state, you can terminate her for failing to meet the expectations within her 90-day probationary period. Another issue is the fact that she has been out for 3 weeks with an injury that has not been approved. If you have made contact with her yet she fails to contact you or bring in doctor's notes, I would consider this a voluntary resignation. Some companies have it in the manuals that 3 days with no call and no show results in voluntary resignation. She definitely needs to provide doctor's notes. Do you have an attendance policy? If so, and this employee is out and does not provide documentation, then you may be able to terminate her on this principle. The performance issue is the greates one, though. Be sure to document, document, document! Even if you have conversations with her over the phone, document what she said and what you said. This kind of thing proves to very important later down the road. I have dealt with a similar situation but with an employee who had much more seniority than in this case. As for the mother-in-law, that is a non-issue as far you are concerned. It is important to care about employees, but not get involved in their personal problems unless it affects their work. This is a problem this employee and m-i-l need to work out. Good luck!

Paul

Just a couple of quick notes:
1. I agree - check your attendance policy to see if there is reason to terminate on a "no call - no show" basis.
2. Talk with your corporate attorney - you may find that it will be easier to fight the inevitable lawsuit over the discharge if you first send her a letter (composed by your labor attorney) requesting that she come back to work. Make sure that the letter gets sent in 2 ways - one in regular mail and the second one registered, return receipt requested. The reason for this is that courts have recently upheld that if a letter gets sent these two ways, the receiving person can not claim that they never got the letter.
3. Refer the m-i-l to your EAP if you have one. You do not want to lose this valuable employee if at all possible (and you are going to be in for problems no matter which way you go on this).

IMPORTANT NOTE: One point where I differ from the above is the "probationary status" in an at-will state. If you are an at-will company, there is no such thing as a "probationary" period. If you have this language in your handbook, remove it immediately!!!! It is OK to have an "introductory" period, but the words "probationary period" will invalidate your at-will status if you ever get sued.

Theresa Gegen TX

I agree that you have a problem employee, but ther is a big legal risk in just hauling off and firing them while they are on a medical leave.

At least in Texas, one of the most dangerous claims an employee can make is for worker's compensation retaliation (I made a good faith worker's comp. claim, and you fired me for it). It is a difficult claim to defend because (1) the case cannot be sent to federal court, where the judges and juries are more conservative; (2) juries believe that in an effort to save money, employers will fire people who make worker's comp claims and (3) there is no cap on damages.

Here is how an employee will argue the case: "Apparently, my work was fine before I got injured. No one complained. But as soon as I made a worker's comp claim, the employer found all these faults with my performance"

Remember, just because the worker's comp carrier says "its not covered" does not mean that the claim was not made in good faith. The carrier could be wrong, and they have a financial incentive to find no coverage, so their finding may be suspect.

Also, you need to make sure that the person is treated like other people under your leave policy. FMLA may not be an issue, but disparate treatment (for example, if a man was hurt and got extra leave, but the company doesn't give it to her) can give you trouble.

I wouldn't say that you shouldn't fire this person. That is an operation decision that must be made by balancing this risks. However, by making sure that you have fully investigated the performance issues and documented the facts, you can atleast reduce the risk.

I hate to always advice that people hire an attorney, but I really believe that a few hundred dollars that it will cost to have an attorney review the facts and help you develop good documentation can save you hundreds of thousands of dollars down the road.

Good Luck!