Yet again, this is something that a lawyer will help you handle correctly.
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.
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.
Can you be more specific about the recourse the terminated person would have in this situation?
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 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.
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.
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.
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)
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).
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.
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.
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.
(Again: I think "for cause" is taking the drama a step too far).
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.
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.
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.
Maybe some sort of edge gender discrimination, or perhaps in case this guy is some nymphomaniac and has a documented mental condition. Speculating wildly.
He could be a veteran, or a minority, or disabled.
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.
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?
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).
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).
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".
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.
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?
Most employment agreements have a probationary period (e.g., 3 months) where the employer can terminate the new hire without cause.
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.
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.