Everyone makes mistakes. Everyone. So, can making a mistake get you fired? Well, that’s what this reader note wants to know.
I’m suspended pending investigation. I work in a restaurant on the Vegas strip, I am being accused of breaking a glass on purpose. The glass went into the ice used for customers.
I did not break the glass on purpose, it was wet and slipped out of my hand. If you look at the video, it appears that it was on purpose, but I did not break it on purpose. It was an accident. I have worked in this industry for 15 years, I have NEVER broken anything on purpose. What benefit would I gain doing this?!
I’ve had one meeting with HR. Some of my friends are telling me to just quit and walk away. If I’m fired, I will be unable to work at any of the company’s locations for 2-3 years (and they’re a big employer).
I should add, I work in a hostile environment, the manager does not like me. The feeling is mutual. I know he’s trying to get rid of me.
Thoughts? Fight it because it was an accident or quit?
This story has several complexities to it. I’m not sure we can deal with all the specifics. But there are a few areas where we can look for some insights. To help us understand some of the nuances, I asked our friends at Foley & Lardner LLP if they could assist. And thankfully, they said “yes”. Leonard Feigel is special counsel and a litigation attorney with the firm based in Jacksonville, Florida. He advises employers in all aspects of employment law.
Please remember that Leonard has a regular full-time job as a lawyer and he’s doing this to give back to the profession. His comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, you should address them directly with your friendly neighborhood labor and employment attorney.
Leonard, let’s start our conversation with recording employees on video. Why would an organization want to video record the workplace?
[Feigel] There are various and often multiple different reasons why employers may want to use video surveillance in the workplace. For example, surveillance is often used as a deterrent to theft or other crimes – such as surveillance of a cash register area.
Another reason is to help ensure employee and customer safety, including compliance with safety procedures or policies. It may be common practice in an industry to have surveillance as a crime deterrent and for safety, such as use of video surveillance in convenience stores. To observe employee work performance may also be a reason.
If an organization decides to record employees on video, are there any notifications they need to provide employees?
[Feigel] Whether employers are required to provide notice to employee before video recording them depends on the law of that particular state. Some states, such as Nevada, have a statute that prohibits video and audio recording of individuals unless one person being on the recording gives his or her consent.
With the situation described above where there is surveillance of an area likely covering employees and customers, employers generally provide notice either to its employees (so it has the consent of its employees being recorded) or through a displayed sign to everyone in the area. The sign usually will state something along the lines of “This store or restaurant uses video surveillance and by entering you consent to the surveillance.”
Other states have statutes requiring the consent of all individuals being recorded, which would require notice – which again is usually provided through a sign.
Where the surveillance is located can also play a role. Some states such as New York and West Virginia require employers give notice and employees to consent if there is surveillance in locker rooms, restrooms or changing area. Other states have general invasion of privacy laws that protect employees from surveillance in areas where a reasonable person would think is private, such as a bathroom or possibly a private office. If an employer wanted to conduct surveillance in a private area it would likely give notice that the area is subject to surveillance or inspection and the employee does not have a reasonable expectation of privacy in that area. Surveillance of a public area in a restaurant generally would not qualify as private, so the employer would not need to provide notice, especially if the video camera is conspicuous.
What are the possible pros/cons to using a video to make determinations about employee performance?
[Feigel] The most obvious pro is that there is a concrete visual recording of what actually happened and when it happened, which is more reliable than witnesses that may have faulty memories. Further, it is unbiased evidence, so there is not a risk that a witness is providing untrue or biased testimony because he/she does not like the alleged wrongdoer.
A possible con is that the video may not provide the best angle or visual viewpoint of what really happened, and the employer may give the video improper weight in determining what happened rather than relying on other reliable evidence. Also, many surveillance systems are video only (no audio) so video may not provide the whole story.
The reader note is pointing out accidental versus intentional behavior. If an employee does harm (or potentially does harm), but it was accidental, does that make a difference? Why or why not?
[Feigel] Whether an employee’s misconduct or behavior was intentional or accidental typically makes a difference. As a general matter, employers are not out to fire good employees that were the victim of an accident. Replacing employees cost employers money, and it is more profitable to have a stable workforce of good employees than to constantly be replacing employees.
However, just because an employee claims it was an accident may not save an employee’s job if the accident arose because the employee violated a policy (such as a safety policy) or from an egregious error in judgment. For example, if forklift employees are trained never to transport more than 1 box at a time, but a forklift driver attempts to transport 5 boxes that results in an accident that injures another employee, termination could be appropriate even though the forklift driver did not intend for the boxes to fall off the forklift. In sum, circumstances matter.
The reader note also mentions hostile environment. We don’t know any specifics except that they’ve met with HR. As a general rule, should HR factor manager – employee relationships into their investigations? Why or why not?
[Feigel] To a degree, yes. HR’s investigation ideally should aim on trying to determine the facts, and thereafter the fair and appropriate treatment of the employee (which may include disciplinary action). If a manager and employee have a toxic relationship, the manager may be biased against the employee. Accordingly, the bias may intentionally or unintentionally affect the manager’s memory of an incident or even motivate the manager to provide untruthful testimony. Accordingly, HR may choose to give more weight to other witness statements.
Last question. How should the employee weigh the quit versus get fired decision?
[Feigel] The critical issue, as I see it, is how important is it that the employee be eligible to work at the employer’s other restaurants. The employee is clear that he/she would not be eligible to work at the other restaurants if he/she was fired, but I would have concerns that by simply quitting, especially while on suspension pending the conclusion of an investigation, he/she could preserve his/her eligibility to work at the employer’s other restaurants. Otherwise, employees would always quit before being fired.
Also, the same HR personnel would likely be involved with the hiring decision at the other restaurant. In sum, the results of HR’s investigation, whether final or preliminary, are likely important for the employee’s prospects for future employment with the employer’s other restaurants.
I want to extend a HUGE thanks to Leonard for sharing his experience with us. If you’re looking to stay on top of labor and employment law issues, be sure to sign up for Foley & Lardner’s electronic newsletter or follow one of their blogs. They are on my must-read list.
Leonard’s comment about employers not wanting to fire good employees really resonated with me. That includes employees who make mistakes or have an accident. Organizations would be well served to learn how to deal with employee mistakes of all sizes.
P.S. Today’s image (captured by Sharlyn Lauby at the 2106 HR Tech Conference) reminded me that it’s time to start thinking about the 2018 HR Technology Conference & Expo. The event will be held September 11-14, 2018 in Las Vegas. Keynote speakers include Mike Rowe and Randi Zuckerberg. Act quickly because the Early Bird rate will be ending soon!10