Facing Her Accuser

birdgirl · February 2005

We recently terminated an employee based on unprofessional behavior. My questions is: the terminated ee has stated she was informed that she has the right to face her accusers. Is this correct? My gut reaction is to say no, but I do not know the legalities of this. Help?

Parabeaglex2 · February 2005

My gut reaction is she's been watching too much "Law and Order."

Seriously, though, I'm not familiar with any such provision, except in the criminal justice system where an accused has the right to confront his accusers. If there are any constitutional experts out there, I'm sure they'll let us know.

MS HR · February 2005

no way!
don't do it.

it's b.s. what she's telling you and you're opening a can of worms and possible lawsuit.

marc · February 2005

To my knowledge, that is only in the criminal justice system. In my opinion, only through litigation can she force you to put on a defense, which still may have nothing to do with facing her accusers.

There is a lawyer out there for everyone and it does no good to force her into litigation, but if your documentation and process is sound, don't worry too much about it.

During your termination process, which would include any verbal or written warnings, did she have an opportunity to know what was happening and to respond?

I don't remember the source, but I have read that it is the perception of fairness or lack thereof that drives most employee litigation.

HRGirl · February 2005

Tell Della Street that maybe in court but not at work.

Down_the_Middle · February 2005

birdgirl:
How is it possible for the employee to have been discharged w/o knowing all the facts that were conveyed to her at the time of discharge? Presumably, she was confronted with alleged behavior which was investigated (witnesses)and determined to be terminable???? Inspite of whatever legal protocol you chose to follow I'll be it wasn't as simple as "Someone said you did this and you're fired"...

Whirlwind · February 2005

"Facing her accuser" is a criminal law concept but the employment equivalent is to be told and be able to respond to the reasons she was fired. To carry it further, she would have to be told in sufficient detail (possibly including the identity of the accuser) to make a meaningful response, and she would have to be permitted to make the response to someone in a position to reconsider the termination. However, and this a big however, these are the elements of due process, and due process is not required unless the employee had a property interest in her employment, such as what a contract confers. If this was an at-will employee, you need do nothing further. Nevertheless, many employers who consider themselves at-will still observe the rudiments of due process to make their terminations more bullet proof in case there is a claim that the termination was based on protected class or activity.

Down_the_Middle · February 2005

whirlwind's last sentence is the core of the issue. It's the withholding of information at termination that most often leads us to the courtroom. Withholding pertinent information from the former employee is paramount to giving them untruthful information. Put yourself in the discharged employee's spot---how would you react to YOUR termination due to an anonymous source. Gulp.......

Parabeaglex2 · February 2005

[font size="1" color="#FF0000"]LAST EDITED ON 02-11-05 AT 01:49PM (CST)[/font][br][br]Yeah, but the impression I get is not so much that anything material was withheld; the termed ee was merely not given a chance to "confront the accuser." As at-will employers, I feel our only real responsibility in situations such as this is to determine whether the person did or did not do something based upon a preponderance of evidence standard - we don't need to determine "guilt" beyond a reasonable doubt. If it's more likely than not that the individual behaved unprofessionally (say, a couple of witness statements), that should be sufficient. It's not important that I tell the termed employee who the witnesses are (just my opinion - feeling pretty cynical today for some reason!)

Having said that, I think Whirlwind and Marc both very succinctly and eloquently made the point that the absence of "fairness" or the perception that we are not being "fair" leads to most employment-related litigation.

MS HR · February 2005

you're first duty is to the employer, not the ex-employee.
do not respond as it will develop into a he-said, she-said and what if, by chance, the source now says that it never happened? re-hire? i think not, but an employment lawyer will have you sweating and your ceo/president/whatever will be on your case.

Don D · February 2005

[font size="1" color="#FF0000"]LAST EDITED ON 02-11-05 AT 02:28PM (CST)[/font][br][br]Where are you guys getting the notion that some protected witness or anonymous source led to this termination? I don't see that anywhere in the initial post. The simple answer is 'no a terminated employee has no such right'. Some employers have a policy of not even giving a reason for termination. At the other end of the spectrum is the employer who lays it all out in writing. Neither is inherently wrong, nor is withholding any or all of it tantamount to being untruthful. Then there's California.

birdgirl · February 2005

I appreciate all the input. The employee was made aware the reasons for her termination. She is even aware of several other employees who were present at the time of her unprofessional conduct. Two of the five employees present gave written statements regarding the incident, and based on the code of conduct in our handbook and the nature of the infraction, we suspended, investigated and ultimately terminated the ee. I was just curious about the legal precidence to share the written statements from the other ee's, and it sounds like my original sense is correct. She does not have a "right" to see it. Thanks.

Don D · February 2005

Even so, all she has to do is file an EEOC charge alleging discrimination due to protected class status, file a claim for UI or retain an attorney and any of those will request or require the specific termination information. With UI, you can choose to ignore it. With the other two, you will be compelled to produce your records. But, I would have the advice of counsel before providing the details of your investigation. This has nothing to do with the validity of your investigation or the 'defensibility' of your termination. It's all about telling her to buzz off...she's not entitled to that information from you.

Facing Her Accuser

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