Workplace Investigations: Trash Talk and Hearsay – Ask #HR Bartender
As an HR pro, there are two things that I’ve had to investigate repeatedly. The first is employees using inappropriate language. Call it trash talk, smack talk, or whatever. The second is complaints that one employee is being disciplined for something that other employees do (and don’t get disciplined). Today’s reader note has both.
I am a supervisor for a municipality. Can my employer terminate me on hearsay accusations when the persons accusing me aren’t being held accountable for the same thing? I was told that I’m being suspended for inappropriate talk when the accusers say far worse than myself and are not being held to the same standard. I am fearing termination, but the accusers have admitted doing the same. What are my rights? Everyone is subject to the same rules, right?
I realize there are so many things we don’t know about this situation. But we can talk about using inappropriate language in the workplace and what happens when someone is being held accountable (and feels others are not).
To help us unpack this situation, I asked our friend Heather Bussing if she would lend us her valued experience and thankfully she said “yes”. Heather is an employment attorney and regular contributor at HR Examiner. She’s helped us on several occasions and this post about the importance of job references is still one of my favorites.
Please don’t forget that Heather’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed with your friendly neighborhood labor and employment attorney.
Heather, before we start talking about suspensions, I want to talk about inappropriate language in the workplace. Why do organizations hold employees – especially supervisors – accountable for “trash talk” or inappropriate language?
[Bussing] Employers are liable for the things their employees do in the course of their employment. With harassment law, employers are liable for the things their managers do because that’s who deals with employees on behalf of the organization. Trash talk and inappropriate language can rise to the level of a hostile work environment and constitute harassment based on any protected class such as gender, race, or religion.
While being mean or a jerk under circumstances not related to a protected class is usually legal, employers don’t really want their managers or any employees to be jerks because it makes employees quit. And replacing employees is expensive. If the workplace gets really difficult, it can get hard to hire people. Then the work doesn’t get done and the business fails. So, having a place to work where people are not jerks is important to the bottom line and sometimes the existence of the business itself.
This reader says that they have been suspended for inappropriate talk. And the employees who accused them of it have done the same thing (without repercussions). Should employees focus on what happens to other employees? Or should they be more focused on their own performance?
[Bussing] Treating one employee differently from another and enforcing rules against one set of workers but not another when the rules should apply to everyone is a classic basis for showing discrimination.
On the other hand, if what one person did is really bad and what the other person did is not so bad, then the organization has some discretion about how to enforce the rules.
So, arguing that the rules aren’t being fairly enforced can be an effective argument. But only if your own actions can be justified or are truly not that bad. You need a reasonable position based on your own actions before comparing your situation to how others were treated.
Let’s move on to the mention of hearsay. What is hearsay?
[Bussing] Hearsay is a technical legal term about the reliability and admissibility of evidence in a court proceeding. In an internal employment disciplinary investigation, there is no hearsay in the legal sense. There is a lot of he said, she said, they said, interviews, speculation, assertions, opinions, and assorted emails, text messages, IM’s and documents that offer context for all the things that various people say, feel, and think. All of this is valid and important information and is useful in an investigation of workplace harassment or conflict.
When the reader asks whether they can be terminated based on ‘hearsay accusations’, the answer is sure. It happens all the time. I would hope there would be additional inquiry even if there is no formal investigation, especially for a termination. But often, the only way that an employer learns about what’s going on is from the grapevine where people talk about things they heard about.
You mentioned investigations and inquiries. If an employee feels that a policy isn’t being administered consistently, should they tell HR? Doesn’t this just look like “sour grapes” and won’t be taken seriously?
[Bussing] It depends on the situation and what happened. It also depends on why the policy is not being administered consistently. If it’s some form of discrimination, then yes, it’s generally a good idea to raise it. But first it’s essential for the employee to assess whether there will be retaliation, the chance that things might actually change, and whether they want to spend their time and energy dealing with it.
The best thing I can say without knowing more is to get some help before raising any employment concern. If you’re in a union, start with your union representative. If not, then find a friendly manager or someone you can trust who has experience dealing with workplace conflict and get some advice. Calling an employment lawyer can also be a good idea if you think that discrimination or retaliation are involved and that there is little chance of informal resolution within the organization’s normal channels.
HR should be and often is caring and concerned about whatever employees bring them. But if its a personality conflict and everyone is behaving badly, then escalating the situation can just create more drama and distraction. These situations often end with both people leaving, either voluntarily or involuntarily.
One other thing to consider: It may be better to give up trying to win the situation and figure out whether you would be better off working somewhere else. Even if it seems unfair that the jerk gets away with it, you are better off working someplace where you are appreciated and don’t have to deal with jerks.
The reader ended their note asking about their rights. We don’t know where they are located, etc. That being said, where can employees find information about the company’s discipline process?
[Bussing] This particular reader appears to be a municipal/government employee. Depending on the state, government employees can be dealing with statutory rules, administrative regulations, union contracts, and agency or departmental policies. Usually, it’s a combination. If you have a union, start there. If there’s no union, then ask HR about the written policies on discipline. Even with governmental entities, a lot of that information is available digitally through an employee portal or resource site.
For non-union and non-governmental employees, the employee handbook is usually the best place to start. HR will have copies. You were probably given a copy when you started or it is available digitally in the employee portal or policy section of the employer’s internal communications site.
Last question. We’ve been talking about the employee. I’d like to close by asking you about the company. If the organization isn’t administering discipline consistently, does this put the company at risk? Why or why not?
[Bussing] One of the reasons I hate lots of policies is that there is no way that any rule or policy can account for every situation. There will inevitably be exceptions, often for very good reasons. But once an organization starts enforcing rules against some people, while the same rules don’t seem to apply to others, there is risk that someone will complain that it is discriminatory. And frankly, it often is.
I hope you’ll join me in extending a HUGE thanks to Heather for sharing her experience and knowledge with us. There are many times when the right answer to a situation isn’t clearly spelled out and we need to investigate all of the variables.
I want to extend another huge thank you to all of you who take the time to send me your notes and questions. It does take a while to research and publish the answers, but I hope you find them worthwhile. Because I know if one person is thinking about this, there are probably others who would like to know the same thing.
Image captured by Sharlyn Lauby somewhere off the coast of Mexico
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