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Don’t let trumped-Up excuses prevent sacking bad worker

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,HR Management,Human Resources

Employees who fear their jobs are in danger often try to find some way to protect themselves from being fired. For example, the employee will suddenly report sexual harassment, take FMLA leave or claim he or she has a disability that needs accommodation.

Treat such claims professionally despite any skepticism you may have. Apply your existing policies and investigate the worker’s claim—all the while continuing to build the disciplinary record you need to justify termination.

Don’t dismiss the new claims without an investigation. That makes it look as though you are out to get the employee. Instead, take the employee’s new claims in stride. It is likely the claims will prove to be without merit.

Of course, if your investigation shows that the new complaints are valid, take whatever action you would take in any other similar case.

Recent case: Carlos Arteaga worked for Brink’s, an armored transportation company. He knew he was the subject of an internal investigation into missing cash and thought he might be fired.

Audits showed that automated teller machine pickups that Arteaga worked had shortages of several thousand dollars each.

During the investigation, Arteaga told Brink’s he was suffering from pain and numbness in his arms, fingers, shoulders and feet. He said the condition was work related, and he applied for workers’ compensation. Presumably, he wanted to avoid termination and go on workers’ compensation instead.

However, in his five years with the company, he had never before complained of pain, nor had his company physicals showed any problems.

Days later, the company completed its theft investigation. The result was inconclusive, but Brink’s had lost confidence in Arteaga and fired him.

He sued, alleging he had been fired in retaliation for filing the workers’ compensation claim and because he was disabled under the Fair Employment and Housing Act (FEHA).

The Court of Appeal refused to entertain his case. First, it concluded that his recently reported symptoms weren’t disabling because they didn’t make it difficult for him to accomplish the life activity of working. Plus, the court said the employer had a legitimate reason for discharging him—it had lost confidence in his integrity and honesty.

As part of its case, Brink’s showed statistical evidence that it did not typically discharge employees after they filed workers’ compensation claims. Another important factor was that the wrongdoing investigation clearly started before the disability claim. (Arteaga v. Brink’s, No. B194082, Court of Appeal of California, 2008)

Final note: Brink’s did everything right. It continued its investigation despite the workers’ compensation claim, and was confident it could show that it typically didn’t discharge injured employees. Employers faced with similar situations should follow Brink’s lead.

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