Termination issue.
HR
5 Posts
I'm dealing with a very difficult situation. One of our staff members has accused another of raping her off site. She went to a rape crisis center which did an exam, etc. They've encouraged her to go to the DA - which she intends to do this week, but has misgivings realizing that once she takes that action it's out of her hands. I spoke with our atty. who recommended suspension pending "further investigation." Although we currently don't have any proof, the victim's story and behavior is credible. The accused employee has a history of violence which was discovered after we hired him...convicted of felony assault with a weapon, but only served 3 yr. probation - has been off probation for @ 2 years. I would like to terminate this guy once they police report is filed, even though he's a fairly long term employee. Oh by the way, he just went out on medical leave under FMLA. Any opinions or suggestions?
Comments
He says to suspend pending investigation. Pending who's investigation? Not yours. And when? You damn well know that the police and the DA don't want you running around talking to witnesses and stuff BEFORE they get their own handle on this and decide what ithey are going to do. If you suspend pending investigaiton, basically, you will need to talk to he policy or the DA first to make sure you don't run afoul of any criminal investigation. But if you do that, then you've pretty well committed the female employee to file.
Finally, I know in public sector employment in California, if we investigate an employee for misconduct that could involve a criminal offense, e.g., stealing client's personal funds, we get involved with Fifth Amendment right against "self-incrimination." Of course, we can arrange with the employee and the police or DA that we will not provide any of the employee's statements to law enforcement, thus requiring law enforcement to not only conduct their own investigation but not use the employee's statements made in our administrative investigation. This is based upon some court rulings from many years ago, as I recall (it has been some years since I had to do this, though).
Even though you may be private sector, I think if you know that you would turn over your investigation to law enforcement (freely or under subpoena), you would probably need to make sure you're not in a position of compelling the employee to answer quetions during an administrative investigation under threat of insubordination if he doesn't. It gets tricky.
>deserves it. He is at will (so you don't need a reason to terminate)
>and as long as you aren't terminating because of his FMLA statis, it
>is clearly a legal termination. Think of this woman, if he returns she
>could easily turn around and sue the company for creating a hostile
>work environment. I just saw on another web site that a woman settled
>a suit for $800,000. because her employer allowed a man to work with
>her for TWO days after they knew he had attacked her. The man didn't
>rape her, he simply assulted her. A jury would be very sympathetic.
Finally, if an employee ever makes statements to you under such a warning, anything you learn cannot be reported to the police. If you do, it will taint their investigation, because anything else they discover based on your information will be considered fruit of the poisonous tree and therefore inadmissable.