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Comment by harryh | Hacker News Reader

In addition to patio11's excellent advice it's time to get some training on this. Possibly the lawyer you're going to hire can do this. Possibly they can refer you to someone appropriate.

There are very well established procedures for how to deal with this sort of thing. You need to know them. Depending on the size of your company your managers might need to know them too. Hacker News is not the best place to learn them as most people here aren't experts in the field. There are experts that will teach you for a very reasonable fee.

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I can't upvote this enough.

Patrick's advice is very sound. (Except, perhaps, for that last bit about what to say in an email to employees -- before sending any such email, please refer to Patrick's earlier, superseding advice to "Lawyer Lawyer Lawyer." Let your lawyer basically dictate what your email will say.)

There are ways of handling this that have been worked out through decades of practice and litigation. This is most certainly not an area to be winging it. And, with all due respect to the thoughtful posts on HN you'll encounter, you should always keep in mind that HN is not a free source of legal advice.

Since this has now happened, you'll want to a) lawyer up; b) terminate the offending employee for cause; c) work with the lawyer to set up some sort of HR training for managers in how to appropriately handle these situations.

It might also be time to reemphasize the employee handbook and make known your zero-tolerance policy towards harassment. (But again, consult a lawyer before doing so.)

Just to add on a bit more you are probably right about "b) terminate the offending employee for cause" but before you do that you almost certainly have to give the employee a chance to respond to the accusations. If you just fire him before doing that you are likely opening yourself up to a lawsuit for wrongful termination.

Yet again, this is something that a lawyer will help you handle correctly.

This is the second comment on the thread I've seen invoking "wrongful termination".

By all means, get your lawyer to confirm this fact for you, but: assuming you had the bare minimum competent legal assistance in setting up your company and its hiring documents, there is practically no such thing as wrongful termination in the US. In particular: if it is lawful for you to fire someone at all, it is probably no less lawful to fire them over a good-faith mistake.

Obviously, there are any number of things you can blunder into with your employment documents that can create a colorable claim for wrongful termination. But the reason everyone uses the same boilerplate legalese employment documents is precisely to avoid these kinds of claims, and to firmly establish at-will employment with no implied contracts of job security.

If you think you have an argument that firing this bizdev guy is legally tenuous, I have bad news for you: in your company, it is also legally tenuous to fire a developer who has only ever managed to push code that rm'd your prod environment.

There are actually some legal gradients here. You are right that the OP almost certainly employs the BizDev guy as an at-will employee and can hence fire him at any time for no reason at all.

However, if he is fired for cause ("Mr BizDev guy. You are being fired because you sexually harassed Jane Smith.") instead of just fired without a reason ("Mr BizDev guy. Your services are no longer needed here. Thank you for your service.") then that cause can definitely be questioned if proper procedures were not followed.

I'm going to keep prodding. I, too, think the "with cause" thing doesn't add much to the solution to the problem --- if only because it just adds drama. But you can fire someone for cause, be wrong about the cause, and that termination can still be lawful.

Can you be more specific about the recourse the terminated person would have in this situation?

OK first off I will 100% admit that I am not an expert in this area and hence could be wrong (going back to the previously agreed upon advice that "Lawyer up" is clearly the right thing to do).

That having been said, I have received training, by a lawyer, about how to manage situations in which a sexual harassment claim has been made. In that training I was told that the accused employee has a right to hear and respond to the claims. Further if you punish them before giving them that chance you could be opening the company up to liability. Especially if you specifically fire them for harassment.

I'm not a lawyer either, but I believe that with the exception of defamation --- getting back to "be careful about the words 'for cause'" --- it's not true that you legally owe an accused employee process before terminating them. I think what you were told was false, or that you misunderstood it. I don't think that the victims of a false harassment claim are entitled to damages for their termination.

I would welcome expert correction here.

The slight research I've done here suggests that from a legal perspective, it's safer to terminate than not, even if you're concerned about the veracity of the accusation.

I'm going to repeat that we're in firm agreement about not firing "for cause". You don't need cause to fire employees you've competently hired. It is definitely legally risky to provide negative references that include accusations of tortious behavior! Minimize drama, by all means.

I think we're pretty much on the same page here tbh. As I also was told, and believe, that being careful about the words "for cause" is almost always the right thing to do. I think it's pretty much only this series of steps that can get you into trouble:

1) Employee A claims that Employee B harassed them

2) Company doesn't put in any effort to hear Employee B's side of the story

3) Employee B is fired "for cause" for sexual harassment. Generally it's also not just the words here. It also comes with things like "no severance pay even though severance pay was typical for other fired employees."

4) It turns out that the original claim was bogus

In this specific scenario, the company could have problems.

I know we're going on and on here, and I want to say that I generally enjoy your comments and am not just trying to be the picky message board jerk I normally am. However:

It is very unlikely that a competent hiring practice will generate implied contracts for severance pay. Employees are not generally entitled to severance. Awarding severance to one employee probably doesn't create an implied contract with other employees.

I keep coming back to this (elsewhere on the thread, too): the reason legalese employment agreements always tend to look the same is that they are designed to settle all these issues up front. I learned this when I had briefly hoped to create a more humane employment contract and employment handbook at a previous job, only to find out that pretty much only a lawyer can write either of those two things.

I think(?) the only thing at stake in a firing "for cause" is a later claim for defamation --- unless the terminated employee has a special contract which entitles them to things like severance unless terminated for cause.

> Awarding severance to one employee probably doesn't create an implied contract with other employees.

I believe that this is incorrect. If you fire 10 employees in a row and they all get severance but then the 11th doesn't they absolutely can hire a lawyer and ask why and start digging into events that lead up to the firing. If it turns out that they were fired for sexual harassment without being given a chance to refute the claims and then it turns out that the claim might have been bogus the company is going to be in a bad spot. And it's probably going to end up paying out a 5 (or maybe 6) figure check to make the problem go away.

(PS: totally understand that you aren't being a picky message board jerk. No worries at all)

I am very, very interested in seeing documentation or expert opinion to back this up, because it implies that you can easily and accidentally create an implied contract for severance simply by offering one-off severance.

That would imply that there's a legal disincentive to offer one-off severance (for instance, for a no-harm no-foul sorry-to-waste-your-time bad hire).

Unfortunately I have no expert opinion to give here. Merely somewhat educated amateur. Certainly at this point we are well into "go talk to an employment lawyer" territory. They could very well contradict what I have said. If that happens I will stand corrected.

I think we agree on the most important points here.

:thumbsup:

I'm curious about a later lawsuit from the harassed employee. Does firing "for cause" provide documentation that you did indeed address the harassment problem, whereas firing because "at will" could be unrelated?

Your last point is something that I've stumbled across before, and something that it seems many folks (especially engineers) don't fully grasp.

As I understand it, even "getting drunk and trash talking a previous employee" in front of the wrong people can be seen as impacting someone's employ-ability, and can land you in some difficult legal situations if you're high up enough. Essentially the only safe thing to say about past employees is nothing.

> Essentially the only safe thing to say about past employees is nothing.

Yes. Also, even from a non-legal standpoint, such as future interaction with that employee or their contacts, whether that may be social, commercial or legal.

Negative commments can't be unsaid and have a funny way of spreading to unintended parties.

I didn't take any employment law classes in law school, and never practiced in that area, so take it for what it's worth.

The thing that would set my potential liability antenna up is the "just hired" part. I have the vague recollection that there are some cases where courts have awarded damages in situations where someone is offered a job, quits current his job, moves across the country, etc., and then has the offer rescinded or is almost immediately let go. Good faith might well cure any potential problems, but if it were me I wouldn't be 100% confident just because I knew I was in a generally at-will state.

Also, in response to something that came up further down the chain: at issue in a for cause / not for cause firing decision is eligibility for unemployment. When an employee collects unemployment it impacts the rates the employer pays going forward.

Oh, good point, re unemployment.

(Again: I think "for cause" is taking the drama a step too far).

Are you thinking of promissory estoppel? I'm not a lawyer by the way.

Yep. You can read more about these things at Ask A Manager (askamanager.com) and a continuous theme is that everyone is scared of wrongful termination, but that's really quite rare in the US. It involves breach of employment contract. (Lots of similar misconceptions about "protected class" as well.)

> there is practically no such thing as wrongful termination in the US.

This is true.

However, there is nothing also that stops individuals from filing costly "wrongful termination suits" against a company.

In my little slice of the managerial world, we spend time with HR to fully document performance lapses, ensuring we have written statements clearly indicating expectations and whether they are met, solely because if we were to be sued, we could show enough evidence that this individual was terminated because of a lack of performance, despite being given reasonable time to take corrective measures.

If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits".

In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully".

In the US, unlawful termination occurs:

* When it contravenes an explicit clause in your employment contract or an implied contract you accidentally created.

* When it has the effect of discriminating against a protected class.

* When it violates the ADA.

Employers in the US generally have no obligation whatsoever to provide "reasonable time to take corrective measures". Things like PIPs have two purposes:

* As an attempt to bulletproof firings that target ostensible members of a protected class

* As a humane / bloodless way of notifying employees that they're about to be fired and should start looking for a new job.

> Employers in the US generally have no [legal] obligation whatsoever to provide "reasonable time to take corrective measures".

They do, however, want to CYA.

> In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully".

And "unlawfully" is determined by the US Courts.

> If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits".

If by "safe" you mean "safe from litigation" then yes, that is a risk you take when terminating an employee. I'm certainly not advocating against firing people. I am saying that in my experience, I have to work with HR to have sufficient documentation.

Can you point to the law you're concerned might be violated in this scenario?

No law that I can think of.

Maybe some sort of edge gender discrimination, or perhaps in case this guy is some nymphomaniac and has a documented mental condition. Speculating wildly.

We're assuming the business dev person is not a protected class (basically your run-of-the-mill white bro).

He could be a veteran, or a minority, or disabled.

Many large companies use PIPs as a default for poor performance prior to firing. The frustrating thing about it is that a poor performing worker, who shows up at the office, but does zero work, is likely to bounce around in the PIP system for 12-18 months, collecting a paycheck, before you can terminate them. If they're smart enough to do the bare minimum to satisfy the PIP, they can go back to doing nothing once the PIP is over and repeat this cycle for a few years before they eventually get terminated.

The reason large companies do this for everyone is that over 50% of the population is a protected class (female, minority, veteran, etc), and large companies want to reduce all risk as much as possible, so therefore, you get mandatory PIPs.

Something egregious like this (sexual harassment) definitely warrants an immediate termination. Unfortunately, I've worked on teams with members that did zero work and had an 18 month PIP. It kills morale in unique and incredible ways for the rest of the team.

> Something egregious like this (sexual harassment) definitely warrants an immediate termination.

Why should one incident that occurred outside of work, warrant termination?

Are our private lives subject to the scrutiny of our employer?

Is it sexual harassment if the victim doesn't actually feel harassed?

Yes, if your private life involves making unwelcome and rude sexual advances to other employees, it warrants immediate termination. Employees who do this present a grave risk to the company in terms of legal expense, PR, and recruiting.

Generally, I agree with what your statement. If you sexually harass others in your personal life, and your employer finds out about it, it's prudent to manage them out.

In this case, the employee handled the unwanted advances herself, and later told the OP about it. It's not clear if the female employee felt that it was "rude sexual advance" since to her it was "no big deal."

From the EEOC:

> Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

It's not about how this employee feels about the advance. It's about how the next one will.

That's a pretty broad assumption your making.

If there is a next employee who is harassed, he/she can file the complaint, and the company can deal with it then. As it stands, no company policy was violated, and the female employee doesn't think this is an issue.

This is a single incident, that again occurred during the weekend, and over Whatsapp (both parties consenting to share numbers).

> As an attempt to bulletproof firings that target ostensible members of a protected class

This is phrased poorly -- everyone is a member of (several) protected class, since a protected class is an axis on which discrimination is illegal. Race is a protected class (not just particular races), color is a protected class (not just particular colors, and distinctly from race), religion is a protected class, sex (not just one sex) is a protected class, and so on.

And, in addition to anti-discrimination protected classes, there are all kinds of other prohibited bases for firing (e.g., retaliation for invoking various legally-protected workplace rights such as family/medical leave, etc., or reporting violations of workplace protection, such as wage/hour rules and occupational safety rules.)

PIPs are a tool for documenting reasons for firing to support that they were not for any unlawful reasons would be a more accurate phrasing than saying that they are a means of protecting firings that target "ostensible members of a protected class".

Sure. You're right, this isn't worded well (I wrote it in several successive edits). I'd write it differently now:

PIPs have just two purposes:

1. As a CYA mechanism to avoid discrimination, harassment, and retaliation claims.

2. As a socially acceptable means of informing employees that they should begin a new job search.

> you almost certainly have to give the employee a chance to respond to the accusations

If all the OP had was the claims of the harassed employee, you might have a point. But the OP claims to have seen the actual texts sent.

IANAL, and of course a lawyer should be consulted, but I would be very surprised if there were any danger in firing the employee without further ado.

It turns out that trying to reason things out from what seems right and/or fair can get you in a lot of trouble. If you haven't received specific training on how to handle this sort of thing your instincts can absolutely lead you (and the company) in a bad direction.

You can be extremely selective in the evidence you present. For all you know, they previously could have had "dirty talk" moments earlier. Fell out, and now retaliating.

If you want to be properly moral and just about this? Then you need get his side of the argument and all the information.

If you just want to reduce hassle, then yes just fire him.

Why can't this person simply get fired. No cause.

Even if you want to give them the benefit of doubt (which seems extremely unmerited, given the presented evidence) why would you want to employ someone who shows such poor judgement? This is not a college dorm room. This is a professional setting, and while it is natural for romances to take place, this is in very poor taste to say the least, and even if it had been in more accepted terms, poor timing -you don't just go up to coworkers like you do patrons in a bar/pub and start chatting them up.

Why not fire without cause?

I'm wondering this too, mainly because the OP said "just hired".

Most employment agreements have a probationary period (e.g., 3 months) where the employer can terminate the new hire without cause.

Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.

Ok. Where I live - Canada - it's very commonplace.

Yes; most employment agreements in the US are at-will so you can fire an employee at any time without cause no matter what your seniority :)

Absolutely correct. Most employment agreements in the US have an indefinite probationary period. Consider today your last day every day (speaking mostly in the financial sense).

Also to add to this great advice when you do have workplace harassment prevention, response training one of the things that will emphasize is that the response can't be purely up to the victim. A good training on this will help you explain this necessity to an employee in this circumstance.

Basically

1. You've got the victim's back and will be carefully watching for any form of reprisals which won't be tolerated. Further you will not share any information about the specifics with the rest of the group even though you may have to address the issue generally with them.

2. But... You also have to take action as a responsible manager even if they don't want you to because you have to protect other employees from harassment by the same person. You also have a responsibility to the company to take action because not doing so can open the business up to serious liability if it happens again and you didn't do something.

I think hitting a first serious hr issue like this is a part of the regular part of growing up for many startups. If you don't yet have a clear harassment policy in place, or don't have a lawyer advising you on these kind of issues, or haven't enacted any kind of regular training on harassment prevention and response there's no time like the present to get that done.

ps. My company uses an online course from this company for yearly harassment prevention training. The production value is a bit cheesy, but very informative your first time through: http://www.navexglobal.com/en-us/issues/harrassment-discrimi... I'm sure there are tons of other options.

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