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Ask A Lawyer: Special Edition – Ask an HR Professional

In our eighth installment of “Ask a Lawyer” we have had a lot of Human Resources questions recently, and we decided to create a Special Edition of Ask A Lawyer with one of our HR Professionals. Vanesa Lewinger is our top HR Professional at Law 4 Small Business and was excited to answer some of your questions.

[Albuquerque Journal: ‘Ask a Lawyer’ Talks to Vanesa Lewinger, HR Advisor]

Read it here

QUESTION: I am a female and I own a business. It is filled with highly educated employees. To produce quality work, collaboration is key. The problem is, we have a team member who cries, often, and never for the same reasons. Her crying has a chilling effect on our entire creative process. When I tried to talk to her about the outbursts, I explained it made people uncomfortable. Her response, (while crying) was that workplaces were changing and as a woman she should be allowed to be “genuine”. She felt she should not be forced to hide her feelings just to make “male co-workers” comfortable. To me, her cry-fests are as disruptive as someone shouting curse words in a meeting or throwing a book against the office wall. I feel when she cries, she degrades not only herself, but my company as well. So, is crying appropriate at work? I feel like when your behavior is making your clients cringe and causing coworkers to avoid you, a good write up from HR is needed. Or maybe I am just a trader to my gender and behind the times?

ANSWER: Crying in the workplace is a topic that has come up a lot recently. And, as you can imagine, there are varying schools of thought about whether it is appropriate for the workplace and how to handle it. When dealing with subjective topics like this, I like to break them down into their most basic pieces, focusing on the actual problem, not the feelings I have around them, and tying the behaviors back to the employee policy manual. In this case, I see lack of productivity and dissatisfied clients as two major areas of concern. Another consideration is WHY the employee continually reacts in the way she does.
Crying is a biological function that we have little control over. While it can be perceived as a negative in the workplace, crying in and of itself is not inappropriate. Focus should not be on the crying but the behavior around the crying. What is triggering the crying? Is it a symptom of a bigger problem?
Overall, crying in the workplace is not a negative thing. People cry for all kinds of reasons, good and bad. Employees should be able to express themselves in ways that feel right for them, including crying. That being said, if the behavior is interfering with the work that needs to be done, have a discussion with the employee and develop a plan for how to handle the situation when it arises. For instance, if she begins to feel as though she needs to cry, she can excuse herself and return when she has regained her composure. Maintaining open and supportive lines of communication with your employees will help you maintain a good understanding of how they are doing and where they need support. It will build trust and loyalty and will to help increase engagement which is ultimately what you want to sustain a thriving business.

QUESTION: I have received a complaint from the EEOC. A former employee has accused me of firing him based on his race. I did fire him but not because of his race. I fired him because he was a horrible employee who missed a lot of work and (I believe) stole from me. The notice indicates I am supposed to go to the EEOC website and respond to the charges. The thing is I don’t know that I can prove that he stole from me, so I am not sure if I can put that in my response. He also did some other questionable things to other employees, but I am not sure if I can put that in my response either since it didn’t happen to me personally. I am afraid of being fined by the EEOC if I don’t explain things fully. Can I tell the “whole” story in my response?

ANSWER:Interacting with the EEOC can certainly be nerve-wracking experience but doesn’t have to be. It is important to remember that the position statement submitted by the employer should focus on the facts. The employer’s response should be clear, concise and address only the items listed in the claim. And, never give more information than is needed, you could potentially implicate yourself or your organization in some other way. The EEOC will reach out to you if they have follow-up questions.
In this case, since the charge is based on race and you do not have proof of theft, that piece doesn’t seem relevant to include in your response. Instead, focus on the violations of company policy and documentation of discussions you had with the employee regarding behaviors that lead to his dismissal. That would include any discussions you had with him around the “questionable things” that other employees experienced. Your role as employer dictates that you address employee concerns, so it does not matter if they happened to you, those incidences still service as evidence to behavioral problems that lead to the employee’s dismissal.
Finally, and most importantly, include in your response documentation of the discussions you had with the former employee regarding his work performance, absenteeism and violation of any other company policies related to his termination. If you did not discuss the performance/attendance issues or document those conversations, you will have a tough time defending your position.

QUESTION: I own a small business and one of my employees has come to me about another employee. Basically, one employee is alleging the other employee is ripping the company off. The alleged scheme sounds rather elaborate (it involves theft of company assets/inventory) so it will take some time for me to go through the books and paperwork to figure out what is actually going on and when it happened. Since I don’t have any proof right now, I hesitate to fire the employee immediately. Also, since the employee who told me about the theft wants to remain anonymous, I feel like I can’t even talk to the accused employee about the situation for fear she will figure out who made the accusation. I don’t even know how to start to handle this. Suggestions?

ANSWER:I am sorry to hear about your situation. Scenarios like you are describing happen often in the workplace. That is why “Administrative Leave” exists. Administrative Leave is a common practice used by companies when they are investigating claims that are more severe or emotionally charged. The purpose of an Administrative Leave is to remove the accused party or parties from the workplace, ensuring the safety of the workforce and allowing for a thorough and untainted investigation to occur. The leave protects individuals who may have been victimized by the accused, i.e. a person who has claimed they have been harassed or intimidated. Removing the accused from the workplace also allows the accused to work without fear of retaliation or further harassment. It makes it easier for witnesses to be more forthcoming in their accounts of events that have taken place. Additionally, removal of the accused from the workplace protects the evidence or records from being tampered with or destroyed; especially in the instances of white-collar criminal activity such as embezzlement or insider trading. While there are many reasons to support temporarily removing (with or without pay) the accused from the workplace during an investigation, the accused should never be subjected to a “sloppy” investigation process. Insufficient and ineffective communication with the employee who is being placed on leave can be emotionally devastating. It is important the investigation happen as quickly as possible and that the “water cooler” gossip is kept to a minimum. A delay in investigating the claim could lead to the spreading of false information and prolonged suspension of interaction with clients or accounts which can cause irreparable damage to a professional’s reputation and income. For you in your situation, it would be best if you had a Human Resources Professional to guide you through the process on informing the accused about their Administrative Leave and undertaking the investigation for you. Assuming you do not have HR on staff and you cannot consult with a 3rd party HR expert, I would suggest beginning by outlining the Administrative Leave you will be placing your accused employee on. You will need to explain to your employee that since she is the subject of an investigation into an allegation that has been made, she will be placed on Administrative Leave until the validity of the allegation can be determined. You need to indicate to her if she will be receiving pay and benefits while she is out and approximately how long you feel the leave will be for. You also need to let her know who within your organization will be contacting her with updates and who she should contact should she have any questions. You will need to instruct her that since this is an investigation, she should not be discussing her leave with other employees of the company until such time as the matter has been resolved.
Until you have uncovered enough evidence to terminate the employee, it is important to try to preserve her reputation within your business as much as possible. Limit discussions regarding the investigation only to the individuals who “need to know”. Remember, until the investigation proves otherwise, there is a chance she will need to return to work. It is important that if that happens, the work environment she returns to must not be hostile or uncomfortable.
Since your situation seems it might involve theft, assume the employee you are placing on leave will be smart enough to hire an attorney. This means you need to be prepared to deal with the attorney’s questions and requests for information. You will also want to go about the investigation in a way that would be supportive of a criminal complaint should the evidence in the investigation indicate theft did occur. The best way to navigate these waters would be for you to utilize an attorney of your own, and I would discourage you from communicating with your employee’s attorney directly – you can inadvertently release information or say something that can be used against you later.

Who is Vanesa Lewinger?

Vanesa is an innovative, experienced and self-motivated Human Resources professional, adept at creating and nurturing an employee-oriented culture of professional excellence, focused on goal-attainment, and utilizing a process oriented approach to obtain win-win results. Vanesa has over ten years of progressively responsible Human Resources experience, including employee relations, payroll entry/processing, benefits administration, Human Resources Information Systems (HRIS), policies, 401k administration, and workers’ compensation administration.

In addition to Vanesa, Slingshot has an awesome team of legal professionals who can provide legal services across the United States including Larry Donahue, Donald Kochersberger, Timothy Mortimer, Alicia McConnell, Ian Alden, David Richter, Kallie Dixon, Ross Perkal, and many more. Our team is ready to answer questions that are important to you.

What is Ask A Lawyer?

Ask a Lawyer is a twice per month open to the public legal question and answer session with real lawyers. We want to be able to provide real people answers to real questions. We partnered with the Albuquerque Journal's Business Outlook to provide everyone a way to reach out and have their questions answered. Do you have a legal question you need to have answered? Email us at [email protected] to have your question answered. We review all the questions that come in and provide answers to the ones that are most important to you anonymously.

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We know that there are people out there who don't have a subscription to a newspaper or maybe you get all of your news online. That's why we provide paperless options to anyone who wants to read our previous articles.

[Read: Ask A Lawyer Archive]

You can also find the questions on the Albuquerque Journal's Website and if you want to subscribe to the Albuquerque Journal, here's a link to get a subscription.

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[Read our previous installment: Ask A Lawyer with Kameron Kramer]


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