Potential Legal Nightmare

KCChiefsFan · November 2002

The legal department has JUST informed us that a female EE has sent them a document outlining what the EE thinks is retaliation based of the fact that she was one of the people who complained about a racial slur that was said during an interview of a candidate. The document was e-mailed to legal yesterday, it had an open/ reply receipt attached to it and rebutted about 4 statements that was placed in a Verbal Warning Document that was given to this EE by her manager because of her performance. The document rebuts each one of the manager’s statements with contradicting e-mails.

The issue is we’ve just laid the EE off. She asked about the criteria for layoffs during her exit interview but we refused to answer her question all the while not knowing why she was asking and not knowing about the retaliation document that was sent to legal. Also, although the email was dated 11/19 HR didn’t know about the document until an hour after we laid the EE off on 11/20.

How does that fact that HR didn’t know about the document affect the company if she decides to go to the EEOC and sue?

Also how does mass layoffs play in this situation?

Crout · November 2002

Did your company have a structured RIF plan in place? If so, why wasn't that shared with the EE at the meeting? Among other reasons, RIF's exist precisely to help prevent the kind of thing you are describing.

Gillian · November 2002

Your subject line has it nailed correctly. You have some interacting scenario's. If the verbal warning is for performance that was acceptable before the complaint or if she is getting written up for performance and others aren't - that looks like retaliation, whether it is or isn't. If she was not asked for her side of the story about whatever and had she been asked, she would have verbalized what was in her letter and further, if the letter makes sense, that looks like retaliation. If you have e-mails that contradict what the manager says, you are probably in a world of hurt. I agree with Crout, there is no reason not to be up front with employees about lay-offs. If you aren't, it looks like something is being hidden, adding to the employees suspicions. The fact that HR didn't know about it is irrelevant - the company did, thus miscommunication or lack thereof won't get you off the hook. If your layoff has been carefully planned and you can demonstrate, documented, that the decision to lay this employee off was due to legitimate, non-discriminatory reasons then it may overcome what will be painted as further discrimination. You need an attorney, preferably an outside one. Sorry to say, but your in house legal department will probably go into defense and that won't solve the problem.

Don D · November 2002

I agree with Crout and can think of no reason I would not respond to the question she asked about the layoff criteria. It can only inflame her. I also think that you do not gain any measure of 'safety' because your department did not know of the other activity going on with legal. A jury would likely view this as meaningless, since THE COMPANY, not necessarily all its players, had the knowledge. Sounds like quite a mess. She hears a racial slur and complains about that, then informs legal that she's being retaliated against for that by the company placing untrue warnings in her file. And she seems to have provided some documentation (prior emails) that her performance was not honestly evaluated in those warnings. Then on the heels of her complaint about the racial slur and her notification to legal she gets laid off and is given no reason, even though she asked for one. Hopefully your legal department can sort through this one. Her attorney probably already has his calculator out. Good luck with this one.

Whatever · November 2002

Oh brother, what a mess. In addition to the above, think about the following:
1.why didn't hr know about the oral warnings and the ees rebuttal.
2.was an oral warning given without any witness present and/or a memo sent to HR
3.why are HR and legal not communicating properly with each other.

You definitely need outside legal advice.

KCChiefsFan · November 2002

Oh brother, what a mess. In addition to the above, think about the following:

1.why didn't hr know about the oral warnings and the ees rebuttal.

We did know about the Verbal Warning Letter but it would be a slim chance that the rebuttals would get to us so quickly. The rebuttals were sent at 11:00 the day before the ee was laid off. I believe it had to be opened and read by 12:00 but this company is 80k plus people that is spread across the country. I know this will not fly in court but I can understand how something so critical didn’t get to us before we laid the ee off.

2.was an oral warning given without any witness present and/or a memo sent to HR

I don’t believe there was any witness’s present but HR did have a copy of the Warning Letter. Also I think there was a delay in getting us the signed version of the letter because the EE refused to sign the document after the meeting.

3.why are HR and legal not communicating properly with each other.

That is a fair question that I don’t know all of the answers to. I believe the size of the company was a factor in the miscommunication but that’s our problem and not the EE. I’m going to escalate this whole issue up through the management chain and hope for the best. I am going to suggest to the director of this division that she quickly give the EE her job back. Maybe that would help pacify things without us looking overly guilty.

Any help in this situation is very much appreciated.

Don D · November 2002

I think your best chance is stated in your last two sentences. Other than that, a lot of prayer and a little luck.

Potential Legal Nightmare

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