Just How Badly Do You Need to Fire that Employee? (Revisited)

Less than a month ago I wrote on the folly of terminating an employee at an inopportune time, even if your reasons are just and your motives are pure.  Apparently the lawyers at Wal-Mart are not subscribers to the Business Law Alert because they did nothing to stop a very questionable termination.

Melissa Jackson is one of several plaintiffs suing Wal-Mart for sexual harassment.  Jackson and the other women allege that Wal-Mart did nothing to stop reported sexual harassment by one of the employees.  That suit was filed on January 22, and on February 16 Wal-Mart decided it was the perfect time to fire not only Jackson, but her husband as well.  Both had been there for close to a decade, and during that time Wal-Mart had never seen a need to fire them, but less than a month after she files an action for sexual harassment, she and her husband had to go.

Do you see how bad that looks?  Can you comprehend what the jury is going to think about that decision?

Let me switch perspectives for a moment and explain why Wal-Mart may have made that decision.  As I wrote previously, unscrupulous employees will sometimes file employment lawsuits specifically because they know they are on their way out the door.  If in defense of the sexual harassment claim by Jackson, Wal-Mart is going to claim that she was about to be terminated and only filed this suit in an effort to keep her job, then Wal-Mart should remain consistent and continue with the termination.  Alternatively, it could be that Jackson and her husband have developed attitude problems about Wal-Mart, and are just too toxic to keep around.  (I have no personal knowledge of the facts of this case, and offer this case only as a hypothetical fact pattern for discussion.) 

But with all that said, was there no other way to handle this matter?  I once spoke to the owner of a business that had come up with a very creative approach.  He had an employee who was a perpetual problem, not doing his job and filing what the business owner perceived to be fraudulent worker's compensation and labor claims.  He desperately wanted to fire the employee, but he knew any termination would be met with a wrongful termination action for retaliation.  So, the business owner put the maintenance worker in charge of the flagpole.  His duties were to raise and lower the flag, keep the pole and flag clean, and to make certain no one disturbed them.  He was given an ergonomic chair to sit on near the flagpole so that he would not make any claims for back injuries, and there he sat, eight hours a day, five days a week, watching the flagpole.  The employee could not stand the tedium, and within two weeks had quit.

Although the business owner's plan worked perfectly in that case, I don't suggest for a minute that this is a workable solution.  Aside from the fact that many employees might be perfectly content to work as a flagpole watcher, from a legal standpoint the worker could still have made the claim that this newly created position was a form of retaliation.  But I offer this tale as an example of an employer that thought outside the box.  He looked at the bigger picture and successfully avoided a costly lawsuit. 

Businesses tend to think in black and white terms.  I often see cases where an employee loyally worked for a company for years, and after being rewarded with a promotion, the company terminates that employee because he is unable to perform the new job duties.  Why is no thought given to returning the employee back to the position where he was a valued employee?

Lesson for all businesses:  When you are considering terminating an employee and are asking yourself, "how is this going to look?", then take a moment to also ask yourself, "can I solve the problem with something other than a termination?"

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