Termination issue.

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

  • 12 Comments sorted by Votes Date Added
  • If he is out on FMLA, I would make sure that you had a doctor's certification and that his condition is covered under the Act. While out on FMLA he could really be or anticipate being in jail! If he really doesn't qualify for FMLA or any other type of leave in your policies, you could terminate his employment for not being eligible for LOA. You can only do this, if this is your practice. As long as he is not present at work, you are protecting the victim while she is at work. If he returns, do not let him work or go anywhere near the victim. Pull him into your office and suspend him pending investigation and keep him there until you either have proof that he is guilty or not guilty. As long as he is out of the workforce, you are okay. As you become aware of new information regarding this allegation, I would deal with an attorney at every step. This is not cut and dry because he is innocent until proven guilty!
  • Another avenue to consider......how did you come to know of this employees conviction? What is his position within your company? If the information on his conviction was obtained lawfully and in accordance with FCRA and if this type of conviction creates liability in the position he currently holds, you may be able to terminate employment.
  • He informed us of the situation shortly after hire, implying his actions were self-defense. He needed time off for the trial approximately 1 year after hire. His attorney asked me to write a letter to the court regarding his job performance. After conviction, he needed time off to meet with his probation officer.
  • I have a problem with what your legal counsel is suggesting. Of course, I rcognize he's there and can make the best determination..but my concern is as follows:

    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.
  • Since when does FMLA bar an employer from firing someone who 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.
  • There is a large difference between keeping an employee after having been 'told' he committed a violent act against a coworker and 'knowingly' keeping an employee whom its been PROVEN committed a violent act against a coworker. On the Forum, we talk all the time about second medical opinions - I suggest a second legal opinion is appropriate.
  • > Since when does FMLA bar an employer from firing someone who
    >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.



  • I'd like to take a look at that case you mentioned - can you point me to the website?
  • FYI, I think the case you're referring to is Garrity v. New Jersey, 385 U.S. 493; we generally refer to the warning as a Garrity warning. The gist of the case is that you cannot make an employee choose between answering questions in your administrative investigation and invoking his 5th Amendment right against self-incrimination. We give the warnings to employees to assure them that their statement will not be made available to the police, but they do have to answer questions regarding their job duties or they could be charged with insubordination.

    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.

  • I smell a lawsuit. Agreed if you have factual information the person should be dealt with appropriately. However, there are no witnesses and you may be embarking into a civil matter. At this point it is he said she said. What happens when this person denies the allegation? What happens when you suspend are you going to do this for an indefinite period? If it is without pay and takes a year to get through thge courts guess who may have to pay all back pay. Another concern would be getting involved with a situation outside the workplace. Proceed very carefully.


  • You said the employee hasn't made a police report. Did you talk to the rape crisis center? All you have to go on is the word of the woman employee. Be very careful without documentation that this occurred... This didn't happen on employer property, correct? Right now as absurd as it may sound it's she said... without any evidence. If the guy is out on FMLA do make sure you have a doctor's letter, the other possibility is that being on leave will allow enough time for a police report to be made. Why is the ee not making a complaint with the police dept? I would think she would want him off the streets to prevent a possible second attack. She's under a great deal of stress but had the good sense to get a medical exam. Here's a question-suppose you terminate the guy with just this info, worse case senario it goes to trial and the guy is found innocent? Could he then file for wrongful termination? What is your company policy about people being arrested and employment? Did she ever complain of harassment from this guy prior? I still think you need more than her saying something without any proof/documenation to take adverse employment decisions. Keeping them separate, on different shifts until police action is taken yes. That way you have made a good faith effort. Unfortunately, or fortunately one is considered innoncent until proved guilty. Another thing you could do is call your local district attorney's office and get some advice from them on how to handle the situation and what his rights are legally when no complaint has been made. She may end up never filing a complaint and yet you have terminated him. Schools usually suspend with pay when such types of allegations are made but police reports are also filed. I would ask attorney about these questions. My two cents.
  • Latest news is that she's met with the DA's office, and they've counseled her on how to file the police report. We've been told that once the report is filed, there will automatically be a restraining order issued due to the nature of the case. Our atty. will follow through with the DA's office regarding the charges to see if there is sufficient evidence to warrant further adverse action/termination on our part. I appreciate the input - we seem to be caught between the proverbial rock and hard place. However, I feel our top concern should be for the protection of not only the complaining party, but the rest of our staff.
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