termination issue

Dan McCarthy

One of our employees was recently cited in a newspaper story describing illegal bidding practices. The story implicated our company as complicit. We had no knowledge of this. We are considering termination - not for practices, which have drawn no criminal recriminations that we know of (we just received the story this morning - a week late, but for failing to tell us of the issue, and explain his actions. Is this justified?

Susan Fentin MA

Dan, you should probably proceed with caution here. It is not clear from your message whether the employee was simply commenting on such practices, alerting the paper to possible violations, or whether he was the subject of an investigation. You want to be on the alert for anything that could suggest that your termination was somehow in retaliation for his discussion of possible illegal activity, because he could try to claim that he was a "whistleblower" of some sort. In Massachusetts, we also have the Civil Rights Act, and that could be implicated if you terminate him or threaten to terminate him because he was exercising his right of free speech. I suggest an investigation, talking with him about his concerns and discussing with him the importance of keeping the company's name out of articles that could be misread, as well as inviting him to air any concerns about any unethical business practices with the appropriate people at your company. If you have a company policy against unethical behavior, and it has a complaint channel, you should point out to him that it would be better to utilize that procedure in the future. And if you don't have such a policy, you could enlist his assistance (together with counsel) to draft such a policy. Some of this advice presupposes that this is an employee with no other behavior or conduct problems and that you would like to keep him as an employee, but even if he does have such performance problems, his complaint (if that's what it was) may have made him somewhat immune to termination for awhile, unless you're willing to take the risk of a lawsuit. Above all you want to act fairly, consistently, for business-based reasons, and document all steps and conversations taken. Good luck. If you'd like to discuss this further, I can be reached at (413) 737-4753 or via email at [email]sfentin@skoler-abbott.com[/email].
Susan Fentin

Gar

If this employee was describing illegal bidding practices regarding a government contract, he probably has whistleblower status. If so, terminating his employment may bring you BIG TROUBLE, particularly from the Feds. Be very careful!!!

Theresa Gegen TX

The other two posts are right --- you need to proceed with caution. One thing you will need to do is to get this employee's explanation. The press has been known to quote statements out of context before.

Before terminating this employee, I would review the situation with an employment lawyer.

Good Luck!