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Workforce Management Community Center Forum Index � � Legal Forum � � On the spot terminations (answered by EBG)

Author	On the spot terminations (answered by EBG)
kamtrejo Joined: Apr 16, 2002 Posts: 3	Posted: 2002-05-14 09:34 We have two employees that have been falsifying their time cards. One employee just started a two weeks ago. The other employee has been here longer and has write ups about tardiness and attendance issues, and this employee readily admitted to falsifying the time cards for theirself and the other employee. The new hire quickly changed the time card to reflect the correct time once the other employee confessed. The managers want to terminate them immediately. Are they safe with terminating these employees?
Hirshy1230 Joined: Sep 13, 2001 Posts: 112	Posted: 2002-05-14 10:58 I have had to deal with a very similar situation - we had several employees who were falsifying timecards - of the three employees we believed to be involved, we were able to find proof for two of them - they were both terminated immediately.
nork3 Joined: Feb 12, 2002 Posts: 3876	Posted: 2002-05-14 11:55 "Safe" isnt a term I'd use when talking about a termination. All a terminee has to do is find a lawyer, causing you to retain an attorney and therefore costing you money. In any termination case, you should speak with an attorney to discuss the details and get a qualified opinion. If you're in an "at will" employment state, you can fire someone for any reason or no reason so long as it's not an illegal reason (discrimination, public policy exception, etc). In this case, you'd be on relatively firm ground to fire these two. Even in a non-at will state, you'd probably be OK since what you've here is nearly theft. Do you have an employee handbook that outlines penalties for falsifying a time card? A published policy? A statement on the timecard itself? A "yes" answer to any of these will strongly bolster your position. Speak with an attorney anyway. I think you're OK based on what you've written, but it never hurts to speak with an attorney.
JRC-Walker Joined: Sep 13, 2001 Posts: 13	Posted: 2002-06-11 08:16 We have had numerous discussions with an "at will" employee regarding their ability to follow proceedures. Is there any rule to having to have the conversations documented in a "write-up" prior to terminating the employee? Also, what type of format should one use for such "write-ups"? Are there things that you should avoid saying?
nork3 Joined: Feb 12, 2002 Posts: 3876	Posted: 2002-06-11 10:56 In at will environments, there is no requirement to document anything or even a need to warn the employee. So long as your rationale for firing the person is a legal one, you can simply end the employee for any reason or no reason at any time with or without notice. At least, that's the theory. The reality is that any terminated employee can file a lawsuit for any reason at any time with or without notice. Even if it doesn't go anywhere, it'll cost you in attorney fees. And there's also the matter of unemployment insurance. Since you as the employer are assigned UI rates by the state based on the number of claims against your company, it's always a good idea to minimize UI claims paid. Most states will deny benefits if you have documentation that the employee was discharged because of her or his own willful violation of your company's policies. You've had several "conversations" with this employee. Jot down notes with the date on what the employee was told and what the employee responded (as much as you can remember accurately). That's the start of your documentation. Your next step could be a written warning. Keep in mind that anything you do that smacks of a practice or unwritten policy is going to be a precedent and you'll probably find yourself having to do it the same way/modified way in future cases like this. Your written warning should contain the following: 1. An opening paragraph that outlines the offense and a summary of past counseling/warnings that have been given the employee relevant to this offense. 2. An unequivocal statement that the employee is on probation. And a brief description of what the employee needs to do to retain his/her job. 3. A statement of what's going to happen if there's a repeat of the behavior. Something like: "If you violate the terms of this probation, you will be subject to further discriplinary action which may include termination of your employment". 4. Sign it. Give it to the employee in your presence or his/her manager's. 5. Have the employee sign it (you can include a statement along the lines of "I acknowledge receipt of this letter. My signature does not necessarily imply my agreeement with its contents". 6. If the employee violates the terms, terminate. If he/she gets better, keep the letter in his/her file for a couple of years. 7. Consult with an attorney. If you're not sure of how to proceed in situations like this, the advice of competent counsel is invaluable.
Forum Hosts Legal Forum Host Joined: Dec 20, 2001 Posts: 521	Posted: 2002-06-11 14:32 As Carl points out, legal theory is one thing; the realities of proof are another. As a matter of theory, can an employer terminate an employee for falsifying time cards? Yes (with a minor caveat for the couple of jurisdictions in the U.S. that are not at-will, although even there the employer would have a pretty good argument). Now the problems of proof. Assume the employee sues, alleging that s/he was fired because of their membership in a protected class. How do you respond? How can you prove that you fired the employee because of your belief that the employee falsified the time card? Clearly, the stronger your answer to this question, the better off you are. Gathering this information (the "evidence" or the "proof") to answer that question is why many employers require an investigation before imposing discipline, as a matter of policy. Here, it looks as if at least some investigation was done. Still, if you haven't put together a corporate policy on this issue, you should at least consider doing so now. Finally, I also agree with Carl that you will (almost) always want to consult with legal counsel in connection with the discharge of an employee. Counsel can also guide you with respect to drafting a policy on investigations.