A Tussle Over Tinkle–Part 2
They all sat silently for a few moments. She wanted to make them squirm and worry that they might get suspended or fired. "Do you guys intend to settle your future disagreements by bashing each other's heads in?" she needled.
Both shook their heads no.
"Well, I'm glad to hear that, because you know I won't tolerate fighting. So consider this a formal reprimand. If anything like this ever happens again and either of you is involved, you're gone, do you understand?" she admonished.
They both nodded.
"Now that that's resolved, let's talk about the bill. How do you want to settle it?" Dana asked.
"How about payroll deduction–say $25 a paycheck from each of us?" Fluke suggested. "That would be about $50 a month. Is that okay with you, Dwight?"
"That's fair," Dwight agreed.
"What do you think, Dana?" Fluke asked.
"Done. I'll have payroll prepare the papers for you to sign tomorrow," she said, smiling. Dana stood up from her desk, walked her employees to the door, and shook their hands as they left.
She returned to her desk, inhaled deeply, and sighed, "I wish they were all this easy."
When you make bad decisions, they are this easy. It appears that Dana gave Fluke and Dwight a mixed message. Although she would normally fire or suspend them for fighting, instead, she simply gave them a verbal rap on the knuckles. While she threatened dismissal if it happened again, her departure from normal practice probably left her employees somewhat confused about where she really stands. It appears her view of fighting varies depending on other factors, such as how busy the company is at the time and how she perceives the employees' work performance.
Rather than having her mind race for a solution, we think Dana had other options. Perhaps it would have been better for Dana to tell the employees that she would like to give the matter some thought and arrange a follow-up meeting with them. This approach would give her some time to consider other alternatives. For example, she could decide to follow her normal practice and impose three-day suspensions without pay. However, she also had the option to advise Dwight and Fluke that they would serve their suspension later because of the current work volumes. This would have allowed her to schedule the suspensions to minimize negative impact on company productivity.
A few of us believe that termination was appropriate action, while most of us support a suspension as the minimum penalty. However, some of us do not support the use of a suspension without pay to discipline an employee. This practice tends to create ill will because of its severity. We prefer a non-punitive approach to dealing with workplace problems. We suggest using a three-tiered system. This consists of a verbal warning, written warning, and final written warning, coupled with a brief decision-making leave (paid suspension) to reinforce the seriousness of the situation. Had this type of procedure been in place in Dana's company, the situation would have been easier to deal with in a consistent manner.
Most of us believe that Dana had the right to demand full financial restitution for the repainting of the wall. However, we question the legality of her use of payroll deduction. She should have arranged other forms of repayment.
Needless to say, fighting has no place in the workplace. One of the legal issues illustrated in this story is the potential liability that an employer may face for injuries that employees may inflict upon each other–for example, workers' compensation liability. Although it appears that neither of the employees filed an accident report regarding their injuries, the employer is still on "constructive notice" that injuries have occurred on the job (i.e., the employees are telling their manager about the fight and the injuries that they received). Depending upon state law, it is also possible that if one of these employees harms or injures another employee in the future, or some non-employee who happens to be at one of the public worksites, the employer may be liable for "negligent retention" because the employer knew the employee had a propensity for violence.
Dana should memorialize her "last chance" agreement with Fluke and Dwight in the form of written documents which each man should sign, acknowledging that he understands that any further such conduct is grounds for dismissal. In the event that either man is terminated in the future for fighting, the employer will have documentary defense minimizing its legal exposure against possible claims.
As we discussed in Lien On Me, employers should seek the advice of legal counsel before they attempt to make deductions from employees' wages that are not related to mandatory payroll withholdings, etc. Most states with wage deduction laws prohibit employers from making deductions from an employee's wages to pay off the employee's debt to the company. But remember, an agreement to repay on a weekly basis is not the same as a deduction from a paycheck. The former is legal; the latter is probably not.
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©