What Happens When We Violate the Rules? – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL

“Carelessness does more harm than a want of knowledge.” – Benjamin Franklin

Organizations can get themselves into trouble and create legal exposure when they flaunt common sense and the rules and ignore laws designed to protect employees and employers alike. I came across and interesting case study which can be a cautionary tale for all of us when we think bending the rules and making exceptions will slide by. That works until one party or the other decides to retain legal counsel.

The following is a hypothetical situation, not unlike so many we’ve all seen in our work life. It’s a notional memorandum that could happen in your organization, if people are sloppy about following rules, and using ethics in their behavior and hiring practices.

It has come to the attention of HR that Howard Humble, a 10-year employee, has retained legal counsel as a result of his recent termination. In reviewing this case, several facts present themselves as grounds for legal action for Humble to take against Sales, Inc., based on Title VII and the EEOC. In order to better prepare ourselves against future litigation, and to make senior leadership aware of the events regarding Mr. Humble’s circumstance, HR recommends we examine this case from an employment law perspective, as court cases are extremely time consuming and costly to all involved, regardless of which party prevails. Additionally, the behavior of Humbles’ two supervisors seems to emerge as the root cause for Humble’s action against the company.

While Randy Dufus, the first supervisor, is no longer with us, Ellen Enthusiastic should be held accountable for her actions in this case.

For example, it seems Mr. Humble’s recruiting process did not follow legal guidelines. Below are a few of the issues:

1. Word of mouth recruiting, Randy Dufus phoned Humble, a personal friend, to inform him of the posting, does not always yield a diverse workforce or the best candidates. Therefore Sales, Inc., in the absence of a vigorous recruiting process is now vulnerable for a potential legal action based on potential age, gender and/or race discrimination.
2. Moreover, upon close examination, it’s apparent that Humble’s interview, conducted by Dufus, was not focused specifically on the job responsibilities or the company’s goals, mission, vision, and values. Instead, the record shows that Mr. Dufus discussed the job responsibilities among casual banter about college days and mutual acquaintances. 
3. In addition, during the interview, Dufus seems to have committed fraud in his promise of lifetime employment to Mr. Humble, as lifetime employment could be construed as false representation of a material fact. Few at Sales, Inc.  plan for, and none are promised lifetime employment, as Dufus himself was terminated for illegally fixing timecards.
4. Mr. Humble’s performance reviews are also at issue. Although employers have no legal obligation to conduct performance reviews, annual reviews are documentation of an employee’s performance and development needs, and should be conducted in a professional manner. However, according to reports we obtained, Humble’s performance reviews were conducted in in a bar over beer. No job specific discussions occurred; rather the meetings were almost strictly social.
5. Humble also used these opportunities to reveal to Dufus personal information about his depression, and his unhappy marriage which eventually led to his request for a family medical leave, under the Family Medical Leave Act (FMLA).
6. In addition, under Dufus, Humble’s ratings were consistently “outstanding” and are on file with HR. This leaves Sales, Inc. once again at risk for legal action since Ms. Enthusiastic, the new manager, presented Humble with poor performance reviews within a month of his return from his leave of absence.

In light of the outcome of recent cases, including a recent Supreme Court ruling, it is now urgent that Sales, Inc., immediately publish company policies for disciplinary measures. It is of significance to note that without a published progressive disciplinary policy, Sales, Inc. may be subject to claims based on many of the issues Mr. Humble experienced while in our employ. 

In the above-mentioned case, the plaintiff claimed that his workplace misconduct dismissal was based on his disability (drug and alcohol addiction), and he prevailed in the lower courts using the Americans with Disabilities Act (ADA) as the basis of his case. However, the US Supreme Court ruled for the employer, the defendant, based on the company’s published policy of not rehiring anyone fired for workplace misconduct. Therefore, without a published policy, Sales, Inc. may be unable to withstand a legal challenge regarding disciplinary actions. Published policies will reduce our exposure to litigation and possible costly settlements.

This example may seem laughable, however, there are more organizations than not that try, even unwittingly, to sidestep proper procedure and the law. Without written professionalism and legal exposure are bound to impact, and even bankrupt, a company.

And whatever happened to common sense? How could a manager think his imprudent behavior would fly in a crisis situation?

“It is more from carelessness about truth than from intentionally lying that there is so much falsehood in the world.” – Samuel Johnson

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Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas. Member, Beta Gamma Sigma, the International Honor Society. Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University. Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.