In a fair and just world, the punishment would always fit the crime. Unfortunately, it’s not likely the average employer will be able to mete out justice for questionable employee behavior without experiencing some type of backlash.
The United States is one of the most litigious places on the planet. Americans will sue for any reason, at any time, and often win large settlements for unbelievable things. Knowing the ‘I’ll-sue-you’ mindset is never far away, employers are often hampered in their efforts to terminate or reprimand employees, even when they exhibit questionable conduct on the job.
The situation gets even stickier when a talent manager wants to retain an employee who has exhibited behavior that others believe requires disciplinary action. Whether the employee in question is a high-profile executive or a line employee on the factory floor, Richard Block, a partner at New York-based law firm Dreier LLP, said employers can give someone a second chance and mitigate the risk of workforce backlash and potential litigation. But it requires forethought.
“It depends on what the conduct is,” Block said. “Basically, you have to have discipline that matches the infraction. Then you have to keep in mind: How much exposure did the misconduct have? If word spreads through the company that one of the senior executives, for example, said racist or sexist things in a meeting, you have to do a discipline that sends a message to all of your employees that you’ve taken that seriously. Just giving someone a slap on the wrist and a second chance might generate bad PR with your employees.”
Block said only when talent managers have considered the employee’s level in the organization and the nature of the misconduct can they formulate any type of reasonable defense for a second chance. For instance, if someone tells an off-color joke or one that is strongly laced with sexual innuendo and apologizes to the offended party, that apology might be sufficient. On the other hand, if a number of people witnessed the infraction and the perpetrator is a high-ranking individual, an apology may not be enough.
The words of senior management are often taken to reflect the company’s thoughts and actions on similar subjects. If someone makes questionable remarks, the organization’s reputation could be at stake. Therefore, any decision to retain that employee, to give him a second chance, must be supportable. A company already should have established written policies and consequences regarding conduct or acceptable behavior.
“Let’s assume they’re giving someone a second chance because they’re a big producer,” Block said. “It’s a legitimate business reason, but that won’t be accepted — to keep a racist on because he’s a big producer. First, are you giving second chances for that conduct to anybody, or is it just because they’re a big producer that they’re overlooking the infraction? Be consistent with your policy about second chances. Second, get something in the file that shows you took some discipline. You might not have fired the person, but did the incident impact his or her bonus? Is there something you can point to that shows you did a discipline that would tend to stop the conduct from reoccurring? That’s very important. Third, get an apology from that person to the people involved. Then you should monitor the behavior to see that it doesn’t recur. If it does, depending on what has happened, that may be the straw that leads to termination.”
Block said he’s not a big fan of giving second chances because of the organizational risks if someone repeats an offense, but in the event such a decision is made, having established, relevant policies that everyone in the workforce is aware of is critical. Further, if anyone in the workforce asks why a fellow employee was granted a second chance, have a good explanation ready.
“There’s a whole different standard when it’s entertainment versus an employee in the workforce — but if a senior executive said the same things that Don Imus said about employees in the company, it’s unlikely he would get a second chance. The company has too much vulnerability. If they don’t take something really severe and discharge or something close to discharge, people will perceive that the company condones racism. You jeopardize the company by not taking some really significant action.
“Understand that what happened in the public entertainment world of Don Imus does not apply to private employers. There are no lessons to be learned there, other than the fact that CBS acted — originally they just gave him a slap on the wrist — there was a public outcry, then they fired him. The public in private employment is really your other employees. They’re going to watch what you do to someone who made that [type of] comment at work.”