Firing someone coming off work comp

Mentel

I recently fired an employee who had been released to return to work from an injury to her knee from a fall in the parking lot. Her productivity had really gone down in the last couple of months and she was clicking off her computer when someone would walk past her cube. We checked her computer while she was off doing rehab and it turns out she was on the Internet shopping, checking out soap operas, etc. while she was supposed to be working. We bill clients based on the time employees work on their projects, so it turns out we were billing for work she didn't do because she was screwing around on the Internet and emailing her husband (one day every four minutes!). Our work comp carrier is worried about terminating her. We didn't feel we had a choice. She was cheating both us and our clients. Any comments?

Brad Forrister

Sounds like you've already terminated her, which means it's a done deal.

Your comp carrier is right to be concerned, because of the ease of suing for retaliatory discharge. But that doesn't mean you have to keep someone who's ripping off both you and your customers. As with everything, make sure you document what you found on her computer. Hope you had contemporaneous documentation; adding to the file after the termination has occurred won't help much.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D

Three cheers for Mentel! I applaud you for doing what you should have done which was in the company's best interest. I know you have all your ducks in a row, appropriate documentation and consistency in policy enforcement in place. The comp claim and return to work had nothing to do with it and it's good to see more people not constantly intimidated by prior claims and charges and acting in the sole best interest of the company.th-up

Theresa Gegen TX

One key now is to maintain your evidence. For example, can the computer evidence be printed out in a hard copy form, so even if it is lost on the computer, you will have it if she sues.

I guarentee that if she sues, she will claim that she was not on line shopping and that the evidence was planted. Worker's comp retaliation suits are very risky for employers, but now that she is fired, your biggest worry is to keep the evidence supporting the termination pristine in cas she sues.

I could also see her attorney argue that you went back while she was on leave to drum up evidence against her -- any why hasn't the company checked the other employees who didn't have workers' comp claims? Or maybe termination was too hard of a punishment if she wasn't warned? Or maybe the company never got her side of the story before it trumped up the evidence to fire her.

Sorry to play devils advocate, but I have see these types of scenarios blow up in employer's faces too many times. Any employer who plans to fire an employee who is a high risk of suing, should get their labor counsel involved before the decision is executed. A skilled labor attorney can pick apart the employer's evidence, and make sure all the ducks are in a row!!

Hope she doesn't sue so you don't have to face any of this.

Good Luck!!

Carol CA

What would you have done to another employee in a similar situation who had not had a W/C accident? Would you have warned them about their low productivity? Would you have checked their computer while they were at lunch to see why they always click it off when someone comes into their cubicle? As long as you were consistent in the administration of your discipline, you are OK.