Help please, I need some advice

BeingMyBest · November 2002

I’ll begin by saying this whole situation is less than mature.

An EE who has been laid off under the WARN act had to come back yesterday to gather his belongings and to give the company back his laptop etc. The EE brought back the laptop his security badge and a networking device to his manager. The manager was sitting in the former employees cubicle while the employee started gathering his things and placing them in a box. The manager noticed (from his perspective) that some of the books that the former EE was placing in his box was company property and began asking about them. The manager asked 3 times “are those books company property?” the former EE answered 3 times “nothing I’m taking from this cubicle is company property” and also said that when the HR director called him at home an audit of personal property was never part of the process. The former EEs replies didn’t answer the question for the manager so the manager began taking the books out of the former EEs box. Well (long sigh) the former EE calls 911 and reports that his property is being taken (something to this effect) and while the EE was on the phone with the police the EE states that the manager punched him in the arm. The manager says he never touched the EE. When (longer sigh) the police arrived the found out the former EE had a Digital Voice Recording device on him and recorded the whole event along with the 911 call. The police wouldn’t arrest anyone and told the EE (This is from the company security guards who were eventually notified during the 911 call to the police) that there was no evidence of an altercation (because the former EE wouldn’t give the police the recording device) and that the since the books were on company property the situation was an ownership issue that they (the police) wouldn’t get involved in.

Right now the manager is very suspect because he didn’t call security the first time he noticed that the former EE was taking company property. The former EE is 6’4, weighs 275 pounds and was a former defensive end for a college football team. I don’t know what the manager was thinking but there seems to be something off beam in his story and his actions were less than sensible. To add to the situation the former EE is a minority and I’m absolutely positive he will go to the EEOC about the audit of personal property because he told the manager he would.

Now let’s begin the good part of the story.

Our policy is that anyone who is involved in a physical altercation is automatically fired. The EE says he will press charges and of course the manager says he never touched the EE. The HR director is suggesting that the former EE taken off payroll (the EE would’ve had 60 days pay under our WARN policy) and the manager fired.

The quandary is that if the manager states he never touched the former EE then there were no altercations for all practical purposes. Also if we act like there was an altercation by taking the above suggestions then the EE will say that the manager did hit him because HR wouldn’t have taken the actions it took if there wasn’t a physical altercation. This, IMHO, would make winning a lawsuit by the former EE more probable.

Now, On the top of that I’ve just got e-mail from the former EE stating he is claiming workman comp, his arm is in a sling and he’ll need a witness to assist him with taking his belongings out of the workplace (the belonging had to stay in the former EEs cube).

I’m drinking the darkest coffee I can make right now because I know this will be a very very long day.

Any assistance will be greatly appreciated.

Thank you very much for taking the time to read this.

hrbanker · November 2002

It's possible the manager was intimidated... I would be if facing a 6'4" 275 lb upset employee. That might account for his failure to take action and call security. I tend to agree with you that letting them both go would lend credence to the idea that there was a physical altercation and might put the company at risk. This sounds like one for your attorney. He/she is probably going to be involved anyway before it's resolved. By the way, were the books company property?

njjel · November 2002

You might want to consider putting the manager on administrative leave until this is all worked out. Also, if the ee was already laid off, I doubt your comp company will be paying a claim for him. When we terminate anyone we always have two people present for just the reasons you ran in to, so it would be a good idea to institute that practice. Also when we terminate someone their belongings are packed up for them and brought to the front reception area. They are not allowed back in the office/plant area. I know this doesn't help much with your present situation......good luck.

BeingMyBest · November 2002

By the way, were the books company property?

The manager is new and didn't realize the company doesn't buy many books for the employees. We've gone through our expense reports for the departments that the former EE was in while he was employed and have come up with no records of the books that the former EE had in his possession.

"It's possible the manager was intimidated... I would be if facing a 6'4" 275 lb upset employee"

I agree with you that the employee might have intimidated the manager and the employee could've been taking company property. For those two factors it stands to reason that he should've called security when the EE placed the books back into the box the first time. This, IMHO, would’ve mollified a lot of things. Also the former EE came and turned in his computer and some other company properties. I don’t think books would’ve been the first items on his list to take.
Thinking about the situation a little further I am little more upset that the manager didn’t call security after the second time the former EE placed the books back is his box. If the manager didn’t trust the former EE with items such as books then he should’ve called security and had them stand with him while the EE was packing. This was available for the manager to do before the former EE came on to the premises.

I also agree that if the former EE did go to the EEOC then he wouldn’t have much of a claim but the Digital Recording Device could be a problem in and of itself if it indicates that there was some type of struggle. Also the manager has informed us that the he thinks the former EE was recording him from the beginning and has the sound byte of the manager asking about the “books being company property” and the former EE responding with “Nothing I am taking from this cubicle is company property” is on the recording device. The manager has told us a short time ago this is why he started taking the books out of the EEs box because he felt the EE didn’t answer his question. These things we are getting from the manager in bits and pieces and it’s frustrating the situation even more then it is.

Would something like the Digital Recording Device stand up in court?

How could we discredit it if there was some damaging evidence on it?

The company is in Missouri, how does wire-tapping law come into play?

I think the whole situation places the company in a bind but I think we can work our way our way out of it with some tact.

Thank you very much for reading this and your help.

Theresa Gegen TX · November 2002

1. If the employee has already BEEN terminated under the WARN ACT, the employee is entitled to his WARN payment. I know that if an employee is terminated for cause, he might not be considered part of the mass lay off. But this guy has already been laid off (in otherwords, he is already not an employee). I think that cutting off his WARN ACT pay (which is required by federal law, not just company policy), you are buying into a charge with the DOL or Wage department that you may not be able to win.
Before taking that step, you need to get legal advice.

2. Have you determined whether any property left in his office belongs to him? If not, you need to do so. If any of the property left in his office belongs to the employee, it needs to be returned to him.

3. The company can expect the employee will go to the EEOC, but I don't see much merit in his claim, and I don't see the EEOC being too interested. He was already terminated and really suffered no harm.

4. The biggest risk is that the employee will sue for assualt against the manager and the company. This boils down to a he said, he said case. If the employee is much larger than the manager, I doubt the claim will be believed.

5. Before deciding to fire the manager, the company might want to consider how much fault the manager actually had in the incident. The manager made a mistake, but did the company give the supervisors any information about how to handle angry employees -- this is a situation that is not that uncommon when an employee is laid off. If the company didn't forsee that this type of thing could happen and didn't train its managers, maybe firing the manager would not be the best thing to do. The manager could be written up and all managers could have training about how to handle these types of situation.

Good Luck!

Rockie · November 2002

You are SOOOO right. What a lot of trouble for a couple of books!

You have been given good advice and I would certainly seek the advice of an attorney. It would be very interesting to see what the "injury" to his arm involved.

I would not hold any of this guy's money since he is entitled to his WARN money. It will be very difficult to prove that there was a physical altercation if there were no witnesses. It seems unfair (at first glance) to punish an individual by firing him if there is no evidence that an altercation existed just to satisfy another individual's vindictiveness. You would probably have another lawsuit on your hands.

The best advice is to seek legal counsel.

Good luck.

Gillian · November 2002

It is strange why some managers, being perfectly businesslike and professional most of the time, lose their good sense and do and say stupid things when someone is being terminated. Little things then get blown out of all proportion. Instructions about conduct during termination should be a part of all supervisor training programs.

Robert Kaiser MO · November 2002

When all is said and done, I think Gillian is right on target. A big deal(on both sides) made out of trivial stuff. So here is what I recommend. Don't get caught up in their fight and take sides too early. Write the former employee, tell him you are conducting an investigation into the events, and ask for a copy of the digital recording. (In Missouri, the recording is bad manners, but not illegal. The fact that he was recording the conversation tells me that he was either looking for or expecting a controversy over what should have been a no-brainer.) If he refuses to give you a copy, make a record of the refusal. You can also ask for a written statement from the former employee and the supervisor. If the former employee refuses to give a written statement, document that, and base your conclusion on what the supervisor (and any other witness) may say. Cooperate with the former employee in getting his stuff back. Don't cut off his WARN notice pay--it's not worth the aggrevation. Let the worker's comp carrier deal with the "injury." Let it die a natural (or unnatural) death. The supervisor may need to be reminded to call security if it ever comes up again, but (unless there is something else there) this was probably just a bad judgment call, and not wrongful conduct. If you decide the supervisor assaulted the former employee, you should act decisively to make it clear that assault is outside of supervisory duties. If you decide you need a lawyer, feel free to call. Bob

Nick Ogden · November 2002

The manager that "hit" the guy; was that person a 107 lb. woman or a 280 lb. lineman for Georgia? I'd suggest that in the future you have a company policy stating that 2 company reps be in the same room with someone taking their personal items from their office.

Crout · November 2002

Since I can't add to what has already been said, my advice would be to drink something stronger than coffee.

Don D · November 2002

At this point in the scenario, Crout seems to have a valid suggestion, and one that most any attorney will agree with if you offer to share a shot of the beverage. One other point I would suggest is that the EEOC will not give a hoot about whether or not an assault occured. That is totally beyond their purview unless this ex-football player would suggest that the manager punched him on the arm because of his race. The matter of packing boxes, squabbling over books, pops on the arm and taping devices are not part of the EEOC process. (Incidentally, at least 90% of the books on my 14 office shelves are my personal property).

BeingMyBest · November 2002

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The police didn't allow the former EE to file a complaint that night but I feel they are going to. It seems that there are signs of a struggle on the 911 tape along with the doctors notes from the hospital and the fact that the manager never denies there was physical contact. It is also against the law in this state to interfere with someone making a 911 call and the phone is what the manager and the former EE were struggling over during the 911 call.

HR's quandary right now is what to do with the manager. We know the former EE is going to come down with his lawyers and they're going to attempt to make a case out of this one (by the way the former EE had 15 technical books and his lawyers valued the books at just over 500, coincidently). We don’t feel the squabble will be an EEOC issue. We feel they’ll make an issue out of the fact that all of the companies property over 50 dollars have asset tags on them and that the manager audited the former EEs belonging, because he's black, while knowing that the asset tags weren’t present (the manager is new). We don't feel that this is an excuse but we don't think the EEOC will be interested in this situation. 90% of the books on every ones shelves in this company are their personal property, also. The company doesn’t buy technical books for employees because of the expense.

I think we can handle he EEOC if and when they come. Right now we have to send a strong signal that this kind of stupidity is not acceptable. The fact that the 220-pound manager was struggling over the phone during a 911 call and never notified security over the issue is not sitting well with the executives in this company. I agree with the executives that this goes a little beyond a bone headed move. Especially sense the former EE had a digital recording device that, by the way, he doesn’t want to give up to the police just yet and that’s one of the reasons they won’t let him file a complaint. Right now no one but the former EE and his lawyers knows what’s on the digital recording device. The former EE’s property has not been sent back to him in almost week making this whole ordeal cost more than the 5-900 dollars books (if they’re worth that much). We do have a policy that if these situations arise that the manager call security right away not handle the situation themselves with someone who weighs nearly 300 pounds.

I’ve been chugging down my coffee since Wednesday, I think it's time for a break.

Any other comments or suggestions will be very appreciated.

Thank you for your help so far.

Theresa Gegen TX · November 2002

I don't expect the EEOC will be that interested because the employee was already terminated when the incident occured. The EEOC is concerned with Employment Discrimination. Unless the employee shows that the alledged discrimination effected a term and condition of his employment, there is really no remedy from the EEOC standpoint. Also, sounds like the only evidence the employee has of race discrimination is that the employee is a different race than the manager.

If the books are the employees, they should be delievered to him (or his attorney) immediately. (Do an inventory and have a third party deliver the books).

The company's big legal concern is that the employee will sue for an assault or other type of civil claim. I suggest you get an attorney immediately. If you are not yet sure what to do with the manager, and you think you don't have enough information to decide (and that there is information out there -- like the 911 tape and the other tape the employee had), suspend the manager without pay until you get the information you need.

Good Luck!

vertu · February 2003

Just a comment. Why would a manager make such a scene over books? After the intial request to leave the books - let it go! In the end your company will pay allot more the the books are worth in legal fees and any legal actions taken against the company. As someone has stated - policy should mandate that 2 people escort the EE until he or she is out of the building. Your company can bill later for missing company belongings or demand return or with hold the cost (within the law) out of final pay.

Theresa
Human Resources
Studio Vertu, Inc.

mrbill · February 2003

In reading this quickly, 1st thought was that you were set-up, especially concerning the recording device. My understanding is that one cannot record the other parties conversation without their consent. Therefore, You need to check with your legal beagles. Concerning the assault - Think that you need to sit with the manager, and ask if he touched -or- punched the EE. I suspect that the answer is closer to touch, and this aspect ties in with the set-up angle.
As others have said, always prudent to have two management members present at times like this. My sense is that this case will not go far, based on what I have read. Good Luck.

Help please, I need some advice

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