Q: "Michelle" is due back from maternity leave tomorrow, but we don't want her back. When other employees struggled to take over her projects in her absence they found a rat's nest of poorly done and half-done assignments. When one of her co-workers alerted HR to the situation, IT looked at her computer. That's when we discovered what she's been doing during the work week when she's so "swamped" that she needs overtime — Ebay.
Not only did she cheat on her work hours, she also outright lied in the "project status" briefing she gave our management team as justification for awarding her four extra weeks of maternity leave. Her briefing swayed us, and we gave her two extra weeks of paid leave and two extra weeks of unpaid leave based on it.
It's apparent she thought we'd never look into things, and if she hadn't been gone for so long we wouldn't have, which is the silver lining to this mess.
We'd like to fire her on her first day back. We also know that pregnancy gives her "protected status." Other than documenting everything we've found, how do we protect ourselves from a wrongful termination or discrimination charge?
A: Michelle's pregnancy doesn't insulate her against being fired for dishonesty or poor performance. Another company found themselves in a similar situation this year and won their case, Oakwood Healthcare Inc. v. Michelle Bailey, in April.
When Oakwood fired the employee the day she returned from maternity leave, Bailey sued, alleging pregnancy, age and racial discrimination. The 11th Circuit ruled that Bailey's firing wasn't discriminatory given the performance deficiencies her supervisor and others discovered when they assumed her responsibilities, along with falsifications Bailey made on her employment application.
According to Ryan Braley, Regional HR Director for Avitus Group, your company and Oakwood Heathcare both found yourselves in a classic employer situation involving protected category leave. "Although both companies may be able to weather this particular storm," says Braley, "there are others ways that can head off and avoid litigation. We urge our employers to bring the employee into a meeting with their supervisor on the return to work. The supervisor can then lay out point by point the items discovered during her leave."
"On this foundation, the company can prepare a performance improvement plan, which details performance deficiencies and makes clear the need for immediate and continued improvement. Then, on a daily or weekly basis, whatever's reasonable, the supervisor can follow up. If the employee doesn't improve, then the company can terminate with less litigation risk."
Braley also notes the supervisor in this case has some accountability. "If the supervisor had been more aware of this employer's work habits, the entire situation might have been avoided."
Q: I need to terminate a popular employee. Although she's well-liked by her co-workers and others in the organization who don't supervise her, she cheats on her time sheet and makes and then hides constant errors. Then, rather than taking constructive criticism to heart, she claims I treat her unfairly. How do I handle the fallout?
A: When a supervisor terminates any employee, particularly a popular one, it weakens the supervisor's bond with other employees. Not only have you removed someone likable from their work environment, they may believe you treated her unfairly — and wonder what that means for their future.
Often, the employee you fired has invested significant amounts of time and energy telling her co-workers her views about you. She may even have lied. This leaves kindling on which you dare not toss a match by explaining "the rest of the story."
Instead, focus your energy on rebuilding your bonds with your other employees. The more you interact with them, the more your other employees will see you as you are rather than through the lens provided them by the departing employee.
Next, hold a team event as soon as possible, and focus everyone's attention on what is going right and the positive direction in which you and your continuing employees intend heading. This reestablishes some of the sense of security that gets lost whenever any employee exits.