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189

Discipline and Discharge

There is occasions and causes why and wherefore in all things. —Shakespeare, King Henry V

The previous chapters discussed management’s role in selecting, training, and supporting employees successfully. However, some employees do not meet the expectations of man- agement, despite earlier reasonable vetting and training and further appropriate interven- tions by their supervisors. At such times, supervisors and middle managers must resort to more strenuous measures in order to promote satisfactory work performance.

When the performance of employees does not meet minimum expectations, and a few words by the supervisor have not achieved their objective, a disciplinary procedure may be considered. The word “discipline” is derived from the Latin discipere, meaning to grasp or comprehend, and from discipulus, meaning pupil. The term a “disciplined worker” may be used to refer to an employee who is reliable and completes required tasks. Yet the word in contemporary use often is equated with punish (from the Latin punire, denoting penalty and pain). However, in a workplace context, the two words should be regarded as distinct concepts. Supervisors use—or should use—discipline not to penalize subordinates, but rather to improve their behavior in order to meet objectives of the workplace. As Henri Fayol observed in his seminal book General and Industrial Management, poor discipline is the result of poor leadership. Good discipline occurs when workers and managers know and respect the rules governing activities in the organization.1

This chapter discusses why discipline is necessary, how operating programs use it, and what its pitfalls are. It also discusses the ultimate breakdown in the employee/ employer relationship, namely discharge or removal from employment.

WHY SOME EMPLOYEES FAIL TO ACHIEVE DESIRED STANDARDS

In a well-planned and functioning workplace, most workers meet the minimally accept- able standards most of the time. But what of those who do not? It is useless for security managers to launch into a disciplinary mode before considering the reasons for poor per- formance. In fact, many reasons exist for why subordinates do not perform at a satisfac- tory level. These possibilities may be divided roughly into two categories according to their significance and credibility, as follows.

McCrie, R. D. (2007). Security operations management. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from apus on 2020-08-03 12:39:51.

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Explanations that may satisfactorily explain poor performance:

1. A process critical to work malfunctions. For example, utilities and sup- port mechanisms for security operations sometimes fail. If a worker mon- itors alarm signals and the computer crashes, making it impossible for the worker to respond to the alarm in a timely fashion, the alarm console operator cannot be held responsible for substandard performance.

2. Contradictory orders are given by another supervisor. The skills and job understanding of supervisors should be interchangeable. Yet if the primary supervisor sets the worker on a particular task, leaves the scene, and another supervisor preempts that original order, the worker should not be held accountable for not respecting the requests of the initial supervisor.

3. The task requested is illegal. 4. The task required is immoral or unethical. 5. The request is unsafe or dangerous. In such cases, the supervisor is

responsible for the subordinate and should not have placed the worker in a position where safety is an issue.

6. The worker has an acute health or personal problem. Supervisors tend to be lenient when an otherwise well-performing worker has an acute health problem or a personal emergency. But the nature of much secu- rity work requires regularity and reliability, and frequent performance exceptions are disruptive to its goals.

7. The worker does not have the capacity to do the job. This suggests a fail- ure in selection and training. While this is a possible explanation for poor performance or behavior, the situation is unlikely to occur in carefully managed operations. If it does occur, discharge of the employee is indi- cated. Another option is to assign the worker to a different type of posi- tion where he or she may have the capacity to perform satisfactorily.

Explanations usually not satisfactory to explain poor performance:

1. Insufficient supplies or materials are available for the worker. The absence of objects or substances routinely required at the worksite usu- ally should not be an excuse for substandard worker performance. Workers generally ought to be able to recognize a situation in which needed materials are low and reordering them is appropriate. For example, security officers may be expected to complete incident reports in a timely fashion on a prescribed form. The lack of availability of such forms should not be used by a security officer as a reason for not completing a report. Security officers are expected to be flexible in such situations. In this case, the details of the report could be written on plain paper, if necessary, and attached to the correct form when it becomes available. When something critical is required for worker per- formance but is not available due to an earlier failure by management, workers should not be penalized. Increasingly, such reports are pre- pared and transmitted electronically. The same issue holds in terms of expecting workers to make best efforts if the system is down.

190 DISCIPLINE AND DISCHARGE

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2. The employee has been improperly trained. The corrective in such cases is to reassess the training process, if the objection seems reasonable, and retrain the individual. However, training that was carefully planned, ade- quately taught, and certifiably completed by testing to assure comprehen- sion works against this as a credible explanation for poor performance.

3. A coworker prevents the employee from completing a task. Employees are responsible for their specified duties. Saying that a coworker prevented the task from being completed is not a tenable excuse. Exceptions exist, for example, if one worker’s behavior against another was harassing or flagrantly offensive. But could this worker have notified management of this circumstance and did not?

4. Insufficient time exists to complete the task. This explanation would not be valid if work is assigned with an accurate understanding of how much time is required to complete it. The time required is gener- ally measured against the average performance of established workers so that a reasonable work objective can be met.

5. The worker does not like to do a particular task. 6. The employee dislikes the supervisor or vice versa.

THE PSYCHOLOGICAL BASIS OF NONCOMPLIANCE

While some reasonable explanations for unsatisfactory workplace behavior are situa- tional, others are psychological. That is, the worker has a conflict with the methods pre- scribed by the supervisor or the workplace itself. Unconsciously, the worker may resist authority as seen in the embodiment of the supervisor. Failure to respond according to training and directions may be an act of rebellion that reflects deeper unresolved psycho- logical conflicts on the worker’s part. In extreme cases, the behavior may mask an adjust- ment disorder.2

Consider the situation of a new uniformed security officer. The individual has been provided with a complete uniform, carefully selected by the employer. During training ses- sions, emphasis on the use and care of the uniform is stressed. Other uniformed security officers seen as role models by the novice during training are properly dressed. Nonetheless, on occasion, security officers may not be dressed according to regulations. This failure to be properly dressed can be explained by the security officer as a situational exception, a lapse in judgment. This may be possible and excusable. However, a repeated pattern may be interpreted as a sign of resistance—even hostility—to managerial requirements.

The supervisor’s role at such times is not one of psychoanalyst for the errant sub- ordinate. Workers who do not meet the standards of quality and behavior generally achieved by their coworkers require discipline. To fail to discipline makes the employer a conspirator to poor performance.

WHY SOME SUPERVISORS DO NOT DISCIPLINE WELL

A few tasks in the workplace are difficult for novice supervisors. The previous chapter mentioned appraisal interviews as a possible awkward task for supervisors. Providing

Why Some Supervisors Do Not Discipline Well 191

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adequate discipline for underperforming workers is another often onerous task for novice supervisors. But unlike appraisal interviews, which generally emphasize positive features of performance, disciplinary contact between the supervisor and subordinate is different.

The disciplinary process is awkward for both parties. Supervisors in particular may rationalize their inaction with regards to disciplining fellow workers (see Box 7.1). Yet like the appraisal interviews, if disciplinary measures are not taken, work performance could deteriorate. A lack of consistent disciplinary action by a supervisor in the work- place can be the basis of arbitrators’ or civil court judgment against the employer. Poor performance without the presence of corrective action trains the worker that such behav- ior is permissible. The poor performance then is established as a fixed pattern.

192 DISCIPLINE AND DISCHARGE

Box. 7.1 Why Supervisors Fail to Discipline

A supervisor asks two workers to perform an unpleasant task, but one that is included in their job description. A few minutes later, the supervisor notes the workers taking a break for coffee. It is not their break time and the employees did not have permission to take an unscheduled break. The supervisor observes the sit- uation and leaves the room without making a comment to them. The workers never perform the requested task and nothing is ever mentioned again by the supervisor.

Why do some supervisors fail to address employees’ refusal to perform an assigned task? Edward L. Harrison, a professor of management at the University of South Alabama, surveyed supervisors from several industrial organizations partici- pating in management development seminars. Based on their responses from his questionnaire, Harrison came up with 14 main reasons why managers fail to disci- pline workers:

Percentage Reason for Failure to Discipline

42.9% The supervisor had failed to document earlier actions, so that no record existed on which to base disciplinary action.

40.4% The supervisor believed that he or she would receive little or no support from higher management for the disci- plinary action.

29.2% The supervisor was uncertain of the facts underlying the situation requiring disciplinary action.

20.9% Failure by the supervisor to discipline employees in the past for a certain infraction caused the supervisor to forego current disciplinary action in order to appear consistent.

20.5% The supervisor wanted to be seen as a “good guy.” 19.5% The employee involved was a close friend of the supervisor. 14.8% Job demands and conditions made it inconvenient for

the supervisor to discipline the employee.

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In effect, the supervisor who fails to appropriately correct the worker hurts several parties. The deficient worker becomes complacent and may feel encouraged to flout more rules. Other workers observe the substandard coworker and wonder why he or she is permitted to deviate from the organizational policy. The quality of their work, too, may decline. The organization then becomes affected by an insidious decline in quality performance. Desired production goals or qualities of service are not met as planned. Finally, the supervisor realizes that by failing to correct subordinates, his or her job is not being performed as it should be. All of this is moot if the supervisor identifies errors in performance in a timely fashion, corrects them discretely and with dignity for the worker, and restores the employee to desired productive levels of behavior.

HUMAN RELATIONS–ORIENTED MANAGERS

In the lore of the workplace, the bosses of yesteryear are remembered as Simon Lagrees or Ebenezer Scrooges. The characters are harsh, brutish, and cruel. Lagree remains unre- pentant until the end of Uncle Tom’s Cabin, though Scrooge experiences a personal epiphany that results in a happy ending for A Christmas Carol. While the fictional portrait of past employers may have been stereotyped in literature, it is beyond debate that the contemporary workplace is a kinder and gentler place for employees than in past generations, even concerning disciplinary matters.

Abusive bosses are no longer accepted or acceptable in the workplace. Yet not all man- agers have the sensitivity of trained counselors. Why should they? Managers have strengths and weaknesses like everyone else. Still, the reality is that contemporary managers are better attuned to and more tolerant of moods and feelings of workers than in the past. This is due to increased education, workplace training, changing workplace ethos, a growing understanding of psychological dynamics, changing employment laws, and the risk of litiga- tion or forced arbitration from complaints about supervisors from subordinates.

Human Relations–Oriented Managers 193

13.9% The supervisor was uncertain of provisions in the labor agreement pertaining to the situation involved.

13.5% The supervisor provoked the employee infraction. 13.3% The employee problem was one that should be dealt

with through the employee assistance program rather than through a disciplinary penalty.

11.9% The supervisor was concerned that a disciplinary penalty might result in a charge of racial or sexual discrimination.

10.9% The supervisor did not want to draw negative attention to his or her own operation.

6.9% The supervisor was reluctant to penalize the employee because the employee was a union officer.

5.9% The supervisor did not want to spend time on the griev- ance that might result from a disciplinary penalty.

Source: E.L. Harrison (April 1985). “Why Supervisors Fail to Discipline.” Supervisory Management 30(4):18–22.

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PROGRESSIVE DISCIPLINE TO SAVE WEAK WORKERS

Management expends a great deal of effort on recruiting, selecting, training, and support- ing employees. Considerable investment in the employee has been made by the time he or she begins productive work. Further, the employer wants and needs workers to succeed. In such circumstances, the desirable goal is to turn any substandard behavior into accept- able or superior behavior with the least amount of stress and strain. Among some super- visors, the temptation to discharge an errant worker for solid reason often is strong and may be justifiable based on the circumstances. However, management has a financial incentive in endeavoring to improve substandard performance in lieu of dismissal if at all practicable. Therefore, initial or moderate deficiencies in behavior should not lead directly to a disproportionate response on the part of the supervisor. The response must be balanced, impartial, and appropriate to the circumstance.

Corrective or progressive discipline is an enduring and solidly based disciplinary strategy invoked by unionized and nonunionized employers alike. In unionized work- places, such actions often are mandatory and included in collective bargaining agree- ments. These agreements usually state that discipline should be corrective in nature, rather than punitive, but they do not say that discipline must start with a letter of warn- ing and be increased after every subsequent behavior. Supervisors may initiate formal disciplinary action through the issuance of a letter of warning or suspension if an employee’s actions do not improve after discussion. This process forces the manager who supervises the underperforming individual to make decisions and be held accountable. Resolution to problems is meant to be achieved expeditiously.

The stepwise or progressive disciplinary procedure, shown in Figure 7.1, is used in many formal organizations and is meant to enhance levels of trust, communication, and dispute resolution. The sequence of events is as follows:

1. Infractions at work or poor performance. First, a potential discipli- nary offense or behavior must come to the attention of a supervisor. Typically, these include chronic absenteeism, not being present at a post without leave, the performing of an unsafe act, poor work performance, and failure to follow instructions. When confirmed, the supervisor evaluates the infraction further before confronting the errant employee.

2. Supervisor investigates any significant predisposing factors. The supervisor determines if any significant predisposing factors might explain why the worker committed the infraction or performed poorly. Assuming the worker was tardy or absent from work (poor perfor- mance), was someone sick at home? Or were extenuating factors such as truly inclement weather responsible? Despite being tardy, did the worker call the supervisor to warn of his or her late arrival or absence so that scheduling adjustments could be made? Has the offense occurred previously? With what frequency? After gathering all related facts, the supervisor is now ready to discuss the performance defi- ciency with the worker.

3. Supervisor warns the worker. In a calm, nonconfrontational manner, the supervisor speaks briefly and quietly to the subordinate about the

194 DISCIPLINE AND DISCHARGE

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P ro

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Save W eak

W o rk

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FIGURE 7.1 The stepwise disciplinary procedure.

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undesirable behavior. A supervisor may wish to employ a strategy such as the one for correcting behavior discussed in Chapter 5; that is, a gentle, one-minute reprimand. Subsequent to the encounter, many supervisors keep a workplace journal and note in it any signifi- cant worker disciplinary measures taken. This is by far the usual correction for an errant worker, and it usually suffices to improve worker behavior.

4. The supervisor issues a written warning to the worker. After an additional occurrence, the supervisor may “write up” the offense. The undesirable behavior and the response by the supervisor may be recorded in any one of several ways. The supervisor may send a brief, informal memorandum to the worker describing the offense. The supervisor also may write a longer, more detailed memorandum of the event, keeping one copy, forwarding a second to the worker, and providing the third for the employee’s personnel file. The supervisor may also use a Disciplinary Action Report in which the complaint, the method of reducing the undesirable behavior, and the corrective action are described, as shown in Figure 7.2. If the workplace is unionized and disciplinary actions can be the source of a formal grievance, the form may be more detailed and composed of multiple parts: for the employee, the personnel department, the department head, and the union, as shown in Figure 7.3.

5. The worker is given a short suspension. A verbal reprimand and writ- ten notice of substandard behavior usually result in improved perfor- mance. However, this is not always the case. In such instances, a more substantive measure is called for: suspension. The suspension may vary according to the workplace and the nature of the unacceptable behav- ior. One large security program sends the employee home for the day the offense occurred without docking pay. The goal is to dramatically inform the worker that the employer is dissatisfied with the worker’s behavior, but has faith that the employee’s behavior can and will improve.

6. The worker is accorded a longer suspension. Should an additional offense occur, or should a pattern of documented poor work behavior continue, the supervisor may double the penalty of time suspended. The U.S. Postal Service, for example, usually suspends workers for seven days with loss of pay for the initial suspension. The duration of the penalty may differ somewhat according to postal service zones and the severity of the offense.3 Seven- and 14-day suspensions usually are without pay.

7. The worker is discharged. With an additional offense, the next step in the disciplinary process is to dismiss the employee.

Stepwise disciplinary procedures are appropriate for unacceptable but correctable behavior. In the event the employee committed a more serious offense, such as theft or violating serious work rules, the supervisor may consider preemptory discharge.

196 DISCIPLINE AND DISCHARGE

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WHY EMPLOYEES ARE DISCIPLINED

Infractions at work and poor performance represent the two leading causes for discipline that can lead to discharge. These two categories include many specific types of offenses. No published data are available on how security programs discipline and discharge workers. However, the U.S. Postal Service has codified unacceptable behavior into 26 categories of infractions, as shown in Table 7.1. Formal disciplinary actions include letters of warning, suspensions for varying lengths, and removals. Of 69,000 disciplinary actions (representing about 9 percent of all employees), close to 60 percent of the disciplinary actions resulted in letters of warning, 30 percent were suspensions, and 10 percent resulted in discharge.

It is impossible to say whether the disciplinary pattern of the U.S. Postal Service parallels other programs. However, such infractions as absenteeism, absence from the post

Why Employees Are Disciplined 197

FIGURE 7.2 Disciplinary Action Report.

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without leave, failure to follow instructions, the use of unsafe acts or work habits, and poor work performance are the five main reasons for disciplinary procedures in security programs.

LEGAL ISSUES FOR WRONGFUL DISCHARGE

The vast majority of employees who are discharged leave the workplace without taking further action against their employers. A few, however, will not leave quietly. They will make vigorous attempts to retain their jobs despite extensively documented records that led to the discharge. It is important for the supervisor to understand what the rights and obligations are of the employer at such a time.

198 DISCIPLINE AND DISCHARGE

FIGURE 7.3 Employee Misconduct Notice.

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At-Will Employment

For over a century, an employee who did not have an employment contract could not assume that his or her position was secure. In 1877, Horace G. Wood wrote A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto: With Forms, which observed that such an employee could be fired at any time for good cause, bad cause, or no cause at all. This influenced decisions in American courts, and the “at-will” concept of employment was broadly adopted. Less than 20 percent of the U.S. workforce is covered by collective bargaining agreements. Under these conditions, an employer is often permitted to discharge a worker only for “good cause.” By contrast, under the at-will doctrine, employees may be discharged for any reason. (This policy can be superseded by state or federal statutory restrictions requiring due process before termination of employment.)

Collective bargaining agreements began with the recognition of unions in the National Labor Relations Act of 1935 (USC Title 29, Chapter 7, subchapter II §167).

Legal Issues for Wrongful Discharge 199

Table 7.1 U.S. Postal Service Disciplinary Infractions

Infractions Number of Infractions Percent of Total

Absenteeism 22,829 33.01 AWOL 10,488 15.17 Failure to follow instructions 8,601 12.44 Unsafe act or work habits 6,217 8.99 Poor work performance 5,010 7.25 Unauthorized absence from assignment 2,443 3.53 Tardiness 1,765 2.55 Delay or failure to deliver mail 1,510 2.18 Failure to protect funds/mail/property 1,170 1.69 Other 1,086 1.57 Disrespect to supervisor/customer 1,073 1.55 Scheme failure* 973 1.41 Insubordinate 919 1.33 Altercation/assault threats 857 1.24 Expansion of office time or street time 791 1.14 Failure to account for funds or accountables 757 1.09 Use/possession of intoxicant/drugs 566 0.82 Machine qualification/proficiency failure 516 0.75 Falsification of record 363 0.52 Deviation from route 339 0.49 Pilfering/theft of mail or funds/property 294 0.43 Destruction/damage of mail or property 234 0.34 Crime (non–job-related off duty) 168 0.24 Crime (non–job-related on duty) 94 0.14 Falsification of application 56 0.08 Work slowdown/stoppage/strike 29 0.04 Totals 69,148 100.00

*Failure of the employee to demonstrate knowledge expected of the position. Source: U.S. Postal Service Discipline Tracking System, 1987, Summary Report.

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This law signaled that employees could bargain collectively with employers over a variety of issues, including discharge from work. The terms of such agreements were also binding for disciplinary procedures if specifically included in the agreement. Similarly, within government employment, civil service procedures came to govern how such work- ers could be subjected to disciplinary measures by supervisors.

Most for-profit and institutional employers have few, if any, written employment contracts. The exceptions are senior managers, research and development engineers and technicians with the care and custody of important proprietary information, and man- agers and others in creative and entertainment fields. The presence of such contracts may or may not specify the basis for dismissal by the employer. Written contracts without a minimum employment term specified are regarded as terminable at will by either party.4

In the security industry, contracts for personnel are uncommon, but do exist. One national security services firm requires all new security officers to sign an employment agreement.5 Others have followed suit, usually for security workers who have had specialized recruiting and training at the contractor’s expense. The agreements protect the relationship between the contractors and their assigned employees. Nonetheless, they recognize the duration of employment is a variant of an at-will relationship subject to termination by the employer for defined reasons. Currently, three major other “exceptions” to the at-will doctrine exist: (1) breach of an express or implied promise, including representations made orally and in employee handbooks; (2) breach of the implied covenant of good faith and fair dealing; and (3) wrongful discharge in violation of public policy.6 Supervisors concerned with possible legal problems related to discharge may wish to consider each of these issues in light of possible challenge to discharge. The following pages look at each of these three excep- tions in depth.

1. Breach of an expressed or implied promise, including representations made orally and in employee handbooks. Express or implied oral representations made during prehire interviews and at the time job offers are being made and accepted can be considered oral contracts. Such contracts may be recognized by the court. Particular protection of the employment status occurs during times when the employer is contemplating furloughing or dismissing workers. However, discharges for violating the rules and regulations of the employer are not likely to be protected by such an agreement. The courts tend to recognize the language in employees’ manuals to reflect a unilateral offer that is accepted by the employee. Once the employment has begun, “the policies embodied in those pronouncements become legally binding.”7

The basis on which employees may be subject to disciplinary actions, including dismissal, may be contained in a personal conduct policy, as shown in Box 7.2. Such a policy is likely to change with the times, as employers do not wish to be burdened with a fixed policy that cannot be flexible to unforeseen circumstances. Therefore, when new mea- sures are added to the policy, they should be communicated to all employees and added to the handbook.

2. Breach of the implied covenant of good faith and fair dealing. Under certain circumstances, dismissal of an employee is rendered

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more difficult. As noted earlier, violation of terms in the employee’s manual can result in termination for just cause.8 This is a circumstance in which the employer states that the employee will not be dismissed except on defined grounds. Just cause can be incorporated into the language of a written contract, oral agreement, and employee handbook or manual. In such a context, termination of employment for miscon- duct is only possible for substantial breaches.9 A minor neglect of duty, an excusable absence, and a minor misrepresentation or rudeness have been ruled by the courts as not meeting the standard for just cause.

3. Wrongful discharge in violation of public policy. A violation of public policy exists when the employee is threatened with dismissal while legally protected for such behavior. A dismissal at such a time could be construed by the courts to be a “mixed-motive termination” if the termination of the employee was motivated by lawful reasons (just causes) and also by unlawful reasons (violations of public policy). In such cases, the termination often is considered a violation of employee rights depending on the seriousness of these just causes. Regardless of such concerns, “an employer may discharge an employee if he has a separate, plausible, and legitimate reason for doing so.”10

At such times, the employer may have to demonstrate that it was not acting discriminatorily in derogation of a statute. This is discussed in greater detail later in the chapter.

Legal Issues for Wrongful Discharge 201

Box 7.2 Sample Personal Conduct Policy

The employee’s manual acts like a unilateral contract with the worker. Conditions for personal conduct can change over time, and these may be reflected in a new edition of the manual. The following are the rules and regulations for employees, including protective staff, issued by a security-conscious hotel chain.

A. Violations involving any of the following provide grounds for discipline up to and including termination:

1. Supplying false or misleading information when applying for employment, or any time during employment.

2. Altering or falsifying hotel records, swiping the time clock for another employee, or having another employee swipe your time card, or other manipulation of attendance records.

3. Possessing, using, or being under the influence of illegal drugs or alcoholic beverages while on duty or in uniform.

4. Possessing weapons on hotel premises or while off hotel premises in the performance of hotel duties.

5. Abusing, defacing, or destroying hotel property or the property of guests or other employees.

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202 DISCIPLINE AND DISCHARGE

6. Engaging in any act of violence or disorderly conduct, threaten- ing or using abusive language or rudeness to a guest, super- visor, or coworker.

7. Failure or refusal to follow safety or health rules and regula- tions or failure to report an accident which results in injury to any person.

8. Gross negligence, carelessness, or misconduct. 9. The conducting of noncompany business, such as canvassing,

collection of funds, pledges, circulation of petitions, solicitation of memberships, or any other similar type of activity during the working time of the employee doing the soliciting or being solicited.

10. Theft or unlawful possession of hotel property or the property of a guest, supervisor, or another employee, including lost- and-found items.

11. Immoral or indecent conduct or soliciting persons for immoral reasons.

12. Refusal or failure to perform assigned work, substandard guest relations, refusal or failure to follow a supervisor’s instructions, or any act of insubordination.

13. Excessive absenteeism and/or tardiness. Failure to report to work on three consecutive workdays without proper notifica- tion will be interpreted as voluntary resignation and will result in immediate termination.

14. Unsatisfactory work performance. 15. Gambling on hotel premises. 16. Sleeping while on duty. 17. Working overtime without prior approval from a supervisor. 18. Unauthorized use of hotel facilities, including telephones and

computers.

B. In addition, violations involving any of the following acts will be considered just cause for remedial action, which may involve oral or written reprimand, suspension from work without pay, or dismissal (especially in the event of repeated violations):

1. Failure to punch or sign in and out as instructed by your supervisor.

2. Consuming food or beverages in areas other than those designated for use during breaks. Gum chewing while on duty. Smoking by employees is prohibited in all areas of the hotel.

3. Failure to maintain a high degree of personal cleanliness at all times. Failure to wear prescribed clothing in good repair as well as appropriate company identification.

4. Failure to perform work assignments satisfactorily.

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SPECIAL DEFENSES AGAINST DISCHARGE

This chapter has focused thus far upon just causes for which employment may be terminated. Apart for these reasons, it is important to identify areas in which federal statutes protect workers’ rights in the event of discharge. These issues often are signifi- cant in security programs, which investigate such charges and may be involved at the moment of separation from employment.

Generally, employees who are being dismissed from their jobs for refusing to perform unlawful acts, exercising their rights under state law (such as pursuing workers’ compensa- tion benefits), and performing a civic duty (such as jury duty) are protected.11 Another public policy exception to separation is when an employee is terminated for reporting illegal activity on the part of the employer. So-called whistleblower laws exist in about 40 states, but are not uniform. For example, in about half the states, only public employ- ees are protected by these wrongful discharge acts. Public and private employees are protected in most of the remaining states. These acts protect employees from retaliation for reporting violations by the employer of laws or regulations, neglect of duty, and endanger- ment of public health and safety. Generally, such acts do not protect from discharge an employee who reports alleged violations of company policy, waste, or mismanagement.12

At the time of learning of an employee’s allegedly justified complaint against the employer, security practitioners and human resource managers generally must respond to such assertions sympathetically and nonjudgmentally. Employees are less likely to call authorities to complain of suspected violations of public policy at their workplaces if they feel that management has the internal means for hearing their complaints and achieving positive change, assuming the complaint is valid.13 Employees who believe that the workplace is violating public policy may not only have the moral argument, but they could also pursue financial incentives if the organization subsequently were fined or paid damages for breaking the law (see Box 7.3). At such times, representatives of manage- ment should express their organization’s commitment to uphold existing laws and then

Special Defenses Against Discharge 203

5. Failure to notify a supervisor prior to the start of the shift of tar- diness or absence.

6. Being present on hotel property more than 15 minutes prior to the start of a shift or remaining more than 15 minutes after the end of the shift without express permission from a department head.

Employers with progressive disciplinary programs may wish to retain the right to terminate employees for particular conduct without the need for prior discipline. This policy should be stated expressly in the handbook. Due to concerns for work- place security, an increasing number of employers state that workers who act vio- lently, threaten others, or who without permission carry a firearm onto the employer’s property are subject to immediate termination.

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investigate the complaint. Whistleblowing actions are generally sustainable by employees and others who can demonstrate all of the following elements in their action14:

• The employee has particular expertise regarding the alleged violation of the law.

• The employee’s charges relate to federal or state law or regulations clearly applicable to the employer, or to the code of professional

204 DISCIPLINE AND DISCHARGE

Box 7.3 Whistle-Blower Suits Can Pay Off

Numerous incentives exist for employees to expose dishonest practices committed by businesses against the U.S. government. In some cases, the alleged offender can be a business that derives revenues from activities reimbursed by government. In one example, an accountant for a small hospital turned a wrongful termination suit into a major federal action against giant healthcare management providers. James F. Alderson was the accountant for North Valley Hospital in Whitefish, Montana. He had managed the hospital’s affairs for six years when the board decided to retain Quorum Health Group to manage the hospital operations, including accounting and financing. In selecting Quorum to manage the hospital, the board was impressed with the firm’s cost-reporting system. Two months after Quorum took over, Alderson was asked by a Quorum manager if the hospital kept two financial reports. What Quorum meant, it turned out, was that it prepared one report of actual costs for internal use and a second aggressive cost report that would be submitted to the government for Medicaid or Medicare reimbursement. In the event the aggressive claim survived a two-year audit period, the hospital could book the reserves as revenue. Alderson believed this process to be fraudulent and indicated this to his new management. Soon after, he was fired. He proceeded to institute a wrongful termination suit. In the discovery process, he collected evi- dence showing that the healthcare company systematically misrepresented expenses to the government, illegally increasing its reimbursement.

Alderson filed a lawsuit known as a qui tam, or false claims case, on behalf of the federal government. He notified the U.S. attorney general of this intention, filed the complaint under seal, and then sought to obtain support from the Department of Justice in his suit against Quorum and its previous parent, Columbia/HCA Healthcare Corporation. The process required over five years of effort by Alderson before the government lifted the seal and officially joined the case. In prosecuting the action, Alderson exhausted his personal funds. He became involved, however, with a law firm having previous successful experience with qui tam cases. When actions of this sort are settled in the plaintiff’s favor, the share could amount to between 10 and 25 percent of any recovery, an amount which could total many millions. Alderson and another whistle blower and their lawyers eventually shared a $100 million award paid by HCA.

Source: K. Eichenwald (October 18, 1998). “He Blew the Whistle, and Health Giants Quaked.” New York Times, Sec. 3, p. 1; www.phillipsandcohen.com accessed September 4, 2006.

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ethics recognized as equivalent to state law and which code clearly is applicable to the complainant.

• A nexus exists between the complainant and the violation. • The employee is not a high-ranking executive or manager who

otherwise owes a special degree of loyalty to the company. • The employee has a valid complaint.

LEGAL CASES OF PROPER AND IMPROPER DISCHARGES

Litigation helps mold the ways in which employers evaluate circumstances before dis- charging employees. Appellate-level cases are instructive because they emerge from lower court issues and have been heard by the court of appeals or the Supreme Court within a state. They represent carefully considered arguments, though often on narrowly selected issues. Any decision by an appeals court becomes the law for similar situations within that state only. However, appellate decisions in one state often are broadly cited and affect policies in others. The following are a number of significant appellate decisions relating to the discharge process:

• Discharge upheld after drug test dismissal was challenged. A national hotel chain instituted a drug and alcohol testing program. All employees signed a consent and release form regarding their participation. Some time later, an at-will employee was randomly selected to be tested. According to the analysis, she was positive for an illegal substance. The employee denied drug use and asked to be retested at a different laboratory of her choosing. The employer refused, but offered the employee an opportunity to be retested at the original laboratory used by the chain. The employee refused this offer and was discharged. She subsequently sued the hotel and her supervisor for wrongful discharge in violation of public policy and other charges. The state Supreme Court rejected the appeal, stating that the plaintiff could not show that her employer violated a clear mandate of public policy in the discharge by insisting upon its own drug testing laboratory. (Stein v. Davidson Hotel Co., 945 S.W.2d 714 [Tenn. 1997]15)

• Employee mistakenly fired over theft can sue employer. A housekeeper in a hotel was arrested for theft for allegedly stealing items from a guest room. He spent six weeks in jail until his employer notified police that the missing items had been found. A Louisiana appellate court ruled that the exclusive remedy provisions of the state’s workers’ compensation law did not prevent the housekeeper’s suit for damages against his former employer. (McGowan v. Warwick Corp., 691 So.2nd 265 [La. Ct. App. 1997]16)

• Employee may be fired for violating the employee handbook. A manager of May Department Stores Company, who had been employed there for 13 years, coordinated jewelry promotions. While visiting a store, she removed a large box of gold merchandise and took it across the store to lock it in a secured location. In the process, she left two other boxes unguarded. The store’s jewelry

Legal Cases of Proper and Improper Discharges 205

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manager was nearby at the time, but the promotion coordinator did not ask him to keep an eye on the exposed jewelry. When she returned after a delay, the two remaining boxes were missing. The next day she was called to the personnel office and was fired. Later, she sued for breach of an implied promise of “good faith and fair dealing.” At trial, May provided a section from their employee handbook that stated:

Merchandise valued at $60.00 or more must be housed in showcases with locked doors. All other merchandise, includ- ing all 14K jewelry, must be kept in locked showcases or locked drawers. All jewelry showcases must remain locked at all times, unless a sales associate is attending a customer.

The employee handbook also stated that failure to follow oper- ating procedures can result in “corrective action and possible termina- tion depending on the seriousness of the violation.” The theft resulted in a loss of over $50,000. At trial, the plaintiff provided no evidence to suggest that she was being fired for “capricious,” “unrelated to business needs or goals,” or for “pre-textual” reasons. The court sided with May. (Moore v. May Department Stores Company, No. B045481, Ct. of Appeals of CA, end dist., Div. 2, decided July 31, 1990, 271 Cal. Rptr. 84117)

• Fired guard has no claim when employee handbook gives employer discharge power. At Peninsula Regional Medical Center, Maryland, three employees were attempting to secure a patient with leather straps. In the process, the patient bit a security guard on the wrist. The guard then struck the patient on top of his head. He was asked to leave the room and another security officer took over. In an investiga- tion conducted by the security director and personnel director, written statements from eyewitnesses stated that the guard had struck the patient 15 to 30 seconds after he was bitten. The guard responded that his blow had been reflexive, in an attempt to prevent the patient from biting him again.

The guard was discharged for “committing an unnecessary act of putative retaliation.” The guard sued for breach of contract, wrongful discharge, intentional interference with prospective relations, and other claims. The trial court granted summary judgment to the defen- dant. The plaintiff appealed, and the Maryland Court of Special Appeals sustained the discharge, stating that the termination did not violate public policy. The special appeals court said that the plaintiff also failed to show that he acted in self-defense.

The plaintiff also charged that two different police depart- ments declined to employ him after learning why he had been fired from the medical center. The court of special appeals rejected this claim, noting that the plaintiff had signed a consent form pro- vided by those departments that also released from liability those employers, such as the hospital, that provided information to them. (Bagwell v. Peninsula Regional Medical, 655 A.2d 297 [Md. Ct. Spec. App. 1995]18)

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• Supervisor’s comments about fired employee not considered defama- tory. An employee was dismissed from a convenience store and gas station after her supervisor was not satisfied with the employee’s explanation for why scratch lottery tickets repeatedly were missing during her work shift. The employee denied any wrongdoing and sued her ex-employer for defamation when other employees, including her husband, who was a part-time worker there, learned of the reason for her dismissal. The state Department of Labor Unemployment Division later concluded that she did not steal the tickets. The issue about whether she may have mismanaged ticket security remained open.

The South Dakota Supreme Court found no evidence of malice on the supervisor’s part in revealing to other employees that she thought that the former employee had stolen the tickets. In a split decision, the court’s majority held that the employer, through the supervisor, did not make defamatory comments about the worker in responding to other employees’ queries about the departure of their former coworker. (Petersen v. Dacy, 550 N.W.2d 91 ([S.D. 1996]19)

INSURANCE AGAINST WRONGFUL TERMINATION

In the event an employee institutes an action against his or her former employer for wrong- ful termination, the employer may expect its general liability insurance policy to help fund the defense. Such broadly written insurance coverage is likely to cover legal defense costs, related pre-trial expenses, and judgment against the defendant, if any. However, insurers may seek to deny coverage of wrongful termination claims in a standard form by claim- ing that the event was a non-occurrence.20

Standard form general liability policies usually pay for occurrence-type losses. In commercial general liability coverage, an occurrence is called an “accident,” and includes continuous or repeated exposure to the same general harmful conditions. For the wrong- ful termination claim to be denied because it was not such an accident, the insurer must prove that the policyholder had a subjective intent to harm or injure the fired employee. Another related basis of noncoverage is that the policyholder “willfully” terminated the employee with a preconceived design to inflict injury. If the standard policy plainly and clearly excludes wrongful termination from coverage, the insured would have to look else- where for expenses related to the litigation. In conclusion, commercial general liability coverage is likely to support the insured’s defense in wrongful termination claims. This assumes the insurer does not have a basis for proving nonoccurrence.

PROCEDURES AT THE TIME OF DISMISSAL

Organizations differ widely on how discharges should occur. The methods of terminating unsatisfactory employees also vary widely among nations and cultures (see Box 7.4). Even in North American workplaces, strategies for dealing with employees who are being dismissed from their positions are diverse. The conditions can change according to the cause and seri- ousness of the dismissal, the rank of the employees involved, and the particular industry.

Procedures at the Time of Dismissal 207

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Box 7.4 How to Dismiss an Employee Japanese-Style

Terminating a worker’s employment differs considerably depending on culture and laws. In Japan, for example, the concept of lifetime employment remains a goal of major employers, yet is presently crumbling as a workplace tradition. Generally, Japanese employers offer a severance package to individuals whom the company does not wish to retain. But what if the employee refuses? That’s what Toshiyuki Sakai decided to do when he rejected a severance package of 2.6 million yen ($23,900) from his employer, the videogame maker Sega Enterprises Ltd. Sakai was told that his work was under par. He disagreed with that judgment. When he refused to resign and accept the severance package, he was transferred to the “Pasona Room.” This room, named for the English word “personnel,” was empty except for a desk, three chairs, a bare locker, and a telephone that received only incoming calls. Mr. Sakai was given no duties and had no personal possessions in the room. He was instructed in writing to report to the room from precisely 8:30 A.M. to 5:15 P.M. He was allotted 55 minutes for lunch.

After two months, the personnel department formally recommended that he resign, and offered him a severance package 9 percent lower than the original one. About three weeks later, he heard through the union that Sega was firing him and would offer him a severance package that was 28 percent more than the original package he was offered. However, he continued to report each day to the Pasona Room. A month later, he filed suit against Sega, seeking to have his old job and salary restored. Seven days later, upon showing up for work, he was stopped by a security guard, who refused to allow him to enter. Sakai thus pursued his suit against his former employer from home. Meanwhile, Sega announced a plan to trim its workforce by one-quarter. Within a few weeks, most accepted Sega’s sever- ance package. “Everyone’s afraid that they might be the next to be thrown into soli- tary confinement,” commented Sakai. The worker elected to remain in the Pasona Room to protect his job opportunities at Sega or elsewhere.

Source: P. Landers (September 14, 1999). “Refusing to Move On.” Wall Street J., p. A1.

In most situations, dismissals are defined as permanent separations from the cur- rent employer. In many other occurrences, however, workers are placed on furlough— that is, temporary status without duty and pay. Furloughs occur when there is insufficient work or when other nondisciplinary reasons arise. Regardless of the basis for such action, security and human resources managers should anticipate the ways in which redun- dancy—temporary or permanent—might produce unwanted problems for management. The grounds for dismissal or furlough can be categorized as follows:

• Economic downturn; retrenchment. Organizations grow with actual success or the anticipation of it. Also, they can contract due to declin- ing sales, decreased funding or support, recurrent financial losses, mergers that consolidate operations, uninsured or underinsured

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disasters, and other reasons. At such times, management often elects one of the most expedient means of reducing costs: cutting personnel. When economic factors cause staff reductions, management might respond to the situation in a variety of ways. Some employers allow workers—especially managers—to remain on the premises and use their former offices and resources for a reasonable period of time as the basis of obtaining future employment. This lenient policy for the worker provides a humane way of helping the employee segue to his or her next opportunity.

At the time of redundancy, however, most employers would prefer that such workers leave the premises. This could mean after one week, two weeks, a longer time, or immediately. In such cases, employees are expected to leave soon after being informed of their termination by human resources or their supervisors. (Workers who resign from significant positions in organizations with high-value intellectual assets may be expected to leave their place of work shortly after giving notice or immediately, according to corporate policy.)

Security-minded employers worry about the potential of sabotage from discharged workers who remain on the premises prior to or after official termination. Common sense dictates that such individuals be treated with respect and dignity as they move their job search activities off-premises. Fearful that such employees may harm company property, remove valuable assets, or create a confrontational situation, some employers expect security personnel to play coordi- nated and visible roles at the time of such dismissal. The use of security personnel to escort workers from their exit interview to their office to pick up personal effects and then, possibly, to the exit itself needs to be considered carefully before implementation. The practice can affect remaining employees negatively if no basis exists for treating the worker like a suspicious person. At such times, a worker being dis- missed is likely to be angry and capable of irrational action. Security should be alert and responsive when dismissed workers are informed of the employer’s decision, as attitude on the part of security matters.

For managers and executives, it is increasingly common that out- placement services are provided. These services may include office space and secretarial resources, résumé services, and job counseling assistance.

• Poor work and misconduct. In cases of just cause for termination, it is normal for a security officer to escort the employee discreetly to the exit. The security officer also obtains the employee’s keys, identifica- tion, and any other materials belonging to the employer if they have not previously been collected. In the event that the materials are not obtained, the employee’s final paycheck is usually held until the com- pany’s property is returned. The possibility of violent action from a discharged and disgruntled worker has emerged as a concern in recent years and is discussed later in the chapter.

Procedures at the Time of Dismissal 209

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THE EXIT INTERVIEW

The main purpose of an exit interview is to provide terminated employees with informa- tion on accrued wages and benefits, such as vacation pay. Related matters like insurance coverage and pension options also need to be discussed. Terms of the employer’s health- care insurance coverage may be reviewed with options laid out for the employee. Such valuable information and assistance helps mitigate the shock and loss many newly unem- ployed persons feel.

The exit interviewer also uses this opportunity to obtain opinions of company opera- tions and management. This can be a time to defuse possible hostility and correct employee misconceptions about the termination process.21 The possibility of a lawsuit and potential claims may be ascertained and noted by the interviewer. Any angry sentiments or threats expressed by the employee should be received by the interviewer calmly. The contents of the unhappy worker’s remarks should be recorded immediately following the interview. Threats should be discussed with a security manager immediately after the exit interview.

Some issues covered in an exit interview are relevant to security. The employee is asked to return all property of the employer at the time of the interview. Thus, the employer’s representative in human relations or security should be aware of the assets the worker possesses or otherwise has available. If some assets cannot be collected by man- agement at the exit meeting, arrangements should be made for their prompt return. Experience shows that if the employer does not obtain all property under the control of the departing worker before the last paycheck is delivered, recovery of such property becomes problematic. This generalization applies to all employees who possess assets of the employer. For example, if a technical developer was permitted to work at home with a computer owned by the organization, a security manager might send a tactful officer— with the employee’s knowledge and permission—to pick it up.

Unionized employees may have the right to a union representative at the exit inter- view. However, if the interview concerns previously discussed disciplinary or discharge matters, union representation is not required.22

Following the exit interview, most organizations promptly delete the employee’s access code for physical entrance to the workplace. The former worker also is blocked from the local area network (LAN) of the workplace, and telephone privileges cease. Security personnel at entrances and exits are informed promptly of workers who are dis- charged or have quit. Photographic images of all former employees may be available to security personnel at entrances.

DISMISSAL AND THE DISGRUNTLED EMPLOYEE

An employee of Pacific Southwest Airlines, a unit of USAir, was fired for stealing $69. His resentment mounted. In December 1987, he purchased a one-way ticket on a commuter trip from San Francisco to Los Angeles. He evaded pre-flight security controls in entering the plane. At 22,000 feet, he entered the cockpit and shot the pilot dead. The four-engine plane crashed, killing 43 people aboard, including the gunman and his former employer, who was a passenger.23 Although this type of incident is exceptional, incidents of violence by terminated and disgruntled employees deserve attention in protection management programs.

210 DISCIPLINE AND DISCHARGE

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The issue of workplace violence cannot be ignored by high-performance security practitioners or human resources managers. Incidents involving disgruntled employees who act violently are far less common, but should be considered seriously by security and human resources managers. Data on the frequency of such incidents is unavailable. However, verified cases appear in the media with frequency, keeping the issue alive. Box 7.5 discusses such incidents in greater detail.

Michael D. Kelleher, author of New Arenas for Violence: Homicide in the American Workplace, states: “The act of terminating an employee can be a dangerous undertaking, even after the actual termination itself has taken place.…”24 Predictions of future behavior can never be certain. The employee who seems calm at the time of dismissal may harbor resentments that build to a quiet fury over time and that may eventually trigger violent behavior. The following are guidelines for terminating an employee:25

1. The employee must be treated with respect, sensitivity, and dignity throughout the termination process.

2. If the termination involves a performance issue, the organization must ensure that performance standards are applied to all employees, without exception.

3. The timing of the termination process is critical. Most employers endeavor to avoid terminating the employee when he or she is under- going stressful life situations, such as a divorce, illness, or the recent death of a close friend or family member.

4. Two members of management should always be present at the ter- mination meeting, one of whom should be a security or human resources professional. This is particularly important if the departing employee is known to have a history of aggressive or violent behavior.

5. Expect the terminated employee to react emotionally. Try to under- stand the shock and pain of the process from the employee’s point of view. Regardless of the emotional nature of the meeting, remain objective and calm. The employee in charge of the meeting should try to keep the meeting focused on the issue at hand, always using a dignified, sensitive approach.

6. Act professionally in the termination meeting. Confine conversation about the termination to the business reasons motivating the organiza- tion’s decision. Ensure that the employee understands what is happen- ing and why it is happening. Do not assess blame or react in a judgmental manner.

7. Be honest with the employee. Ensure him or her that the matter will be handled in a confidential manner. Provide straightforward answers to questions important to the employee.

8. If a reason exists to suspect a violent reaction from the employee, be sure to have security personnel present at the termination meeting and in the presence of the employee when he or she leaves the prem- ises. Alternatively, security personnel may not be seen but be nearby and alert to their possible need to intervene.

9. Be prepared for the meeting. Have all documents ready for presentation to the employee. Have all benefit information ready for review and

Dismissal and the Disgruntled Employee 211

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immediate delivery to the employee. Ensure that arrangements have been made for the employee to gather personal belongings and return company property after the meeting. Prepare and rehearse the meeting in advance so that all points important to the employee are covered.

10. Take any follow-up action necessary to ensure the continued security of the workplace (involving keys, password, and so on) after the departure of the employee.

11. Ensure that an effective outplacement program is available to the employee. A strong outplacement program often makes a significant difference in the transition process.

12. Ensure that the physical departure of the employee from the workplace is handled with dignity and in a confidential manner. No possibility of embarrassment or undue stress should exist in the departure process.

212 DISCIPLINE AND DISCHARGE

Box 7.5 The Violent Disgruntled Worker

About two million individuals are victims of violent crime each year in the work- place. About 75 percent of these incidents are simple assaults, while another 20 per- cent are aggravated assaults. Incidents of violence toward supervisors, managers, coworkers, and others from disgruntled employees are few and are therefore not included in some workplace victimization studies.1 Nevertheless, highly publicized examples of disgruntled and revengeful employees killing or injuring former asso- ciates and innocent bystanders at the workplace have received national attention. These incidents remind security practitioners and human resources officials that complacency about the risks can be dangerous. The following are some examples of such violent workplace incidents:

• An accountant for the Connecticut lottery at the state headquarters in Newington, Connecticut, failed at his attempts to be promoted and subsequently filed a grievance. Returning eight days early from a leave of absence for stress- related problems, he walked into the executive offices and stabbed one official, shot dead two others, and then chased the president into the parking lot and fatally injured him. The gunman then killed himself.2

• In Riverside, California, a former parks and recreation department worker was fired after working five years as a part-time chess coach. He instituted a wrongful termination suit for age discrimination and other causes. Four years later, before his claim had been heard, the ex-employee, now working for the postal service, invaded City Hall and shot two city council members and two police officers there.3

• In Tampa, Florida, a worker for Fireman’s Fund Insurance Company’s local office returned eight months after being fired.

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Such situations are difficult for management and employees alike. Preparation prior to the meeting can be the critical factor in short- and long-term success in managing the interaction. Further aspects of the process that may be emphasized include:

• Timing. According to Sandra L. Heskett, termination should be conducted late in the business day.26 Many employers choose to plan such meetings so that they end after most of the employees have left

Dismissal and the Disgruntled Employee 213

He roamed the office building shouting: “This is what you get for firing me!” He killed three managers with his former firm and injured two more before killing himself later in the day.4

• In Walpole, New Hampshire, the former police chief shot to death the selectman who had forced him to resign and then killed himself.5

• A kitchen worker in the Denver, Colorado, suburb of Aurora returned a week after being dismissed from the Chuck E Cheese restaurant and killed four workers, including the night manager. A police investigator remarked that it appeared the gunman had “held a grudge over his firing.”6

• An ex-postal worker in Goleta, CA, fatally shot six postal employees before taking her own life. The shooter had a long history of bizarre behavior and at the time of the killing was on medical disability for unspecified mental problems. (California and 41 other states have established commit- ment laws for people who show signs of being a danger to themselves or to others. This is known as Kendra’s Law for Kendra Webdale, killed when a schizophrenic, who had been in and out of treatment, pushed her in front of a New York City subway train in 1999.)7

1 “For Example: Violent Crime Strikes 2 Million People in the American Workplace Each Year” (1998). Workplace Violence Report, p. 1. 2 J. Rabinovitz (March 7, 1998). “Connecticut Lottery Worker Kills 4 Bosses, Then Himself.” New York Times, p. A1. 3 D. Terry (October 15, 1998). “6 at City Hall are Shot; Ex-Worker is Accused.” New York Times, p. A18. 4 “Fired Worker Kills 3, Self in Fla. Bloodbath” (January 28, 1993). New York Post. 5 “Murder-Suicide Cited in Town Hall Shooting” (February 14, 1994). New York Times, p. A13. 6 “Gunman Kills 4 Workers at Colorado Restaurant” (December 16, 1993). New York Times, p. A18. 7 D. Frosch (February 3, 2006). “Woman in California Shootings Had History of Bizarre Behavior.” New York Times, p. A19.

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for the day. Fridays are often, but not invariably, the day of choice to break the bad news, since they give the worker the weekend to recover.

• Surveillance and investigation. In the event of threats from an employee, the use of covert and overt surveillance may be desirable. Richard B. Cole writes:

This process requires the striking of a fine balance in recog- nizing that this individual has previously exhibited irrational and endangering behavior directed against the corporation or its employee(s), the absence of formal authority to remove the individual from the opportunity to further endanger, and the obligation to protect the employee and the workplace.27

Most protective functions do not have the capability of conducting such surveil- lance; therefore, an outside competent service may be retained. An overt surveillance team approaches the offending individual, advising him or her that they are present, what they intend to do, and how they intend to do it. They make it clear that such surveillance is believed to be allowed within the spirit of the law.

T.I.M.E. IS NOT ON YOUR SIDE

Consultant Gavin de Becker has described what he calls the T.I.M.E. syndrome, which occurs when management allows a growing situation to include Threats, Intimidation, Manipulation, and Escalation. De Becker comments: “When dealing with a difficult and violently inclined employee, T.I.M.E. is on his side, unless management acts quickly.”28

This section began with some facts about a Pacific Southwest Airlines employee who was fired. Specifically, the reason was for taking $69 of the airline’s bar cash. The employee’s history was more convoluted. The worker had been with the airlines for 12 years. During this time, he was a thief, a drug user, and a drug dealer. He had been warned by his supervisor previously to shape up or face the consequences. Could this person have been “screened out” at the time he was considered for hiring? The question is impossible to answer for certain. But couldn’t an employee of this sort have been dis- ciplined and terminated much earlier?

Dismissing workers early is easier, with less emotional investment on the part of all involved, and with less perceived “unfairness” on the part of a supervisor or a manager. De Becker explains that workers often feel shocked and sense that they have been treated unfairly when facing dismissal. Simply put, managers who are reluctant to discipline or to terminate abusive employees are not astute. Joseph A. Kenney writes: “Employees who get away with rules violations often will push their luck in the future.”29 The courage to fire some employees early may prevent the supervisor and organization from remorse later.

SUMMARY

Fortunately, not all employees require formal discipline. However, some do, and the super- visor’s task is to lead the worker into better behavior. To discipline effectively requires plan- ning and awareness of the facts and options involved. Logical but inexcusable reasons for unacceptable behavior should not allow an oral admonition to get off track.

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Unfortunately, some supervisors do not discipline, or do so ineffectively. They hurt themselves, the worker involved, and the entire organization by such recalcitrance or inep- titude. Supervisors can, however, learn progressive disciplinary measures to increase their effectiveness. Dismissals rarely lead to violence, yet the possibility cannot be ruled out. Certain precautionary measures can decrease the possibility of such violence occurring.

DISCUSSION AND REVIEW

1. In your opinion, why do some workers not achieve the minimally acceptable standards most of the time? What role does management have in dealing with this? What are the limitations?

2. Why should a supervisor collect all available relevant facts before approaching a worker to reprimand him or her?

3. What are the main reasons why supervisors fail to discipline? To what extent is senior management responsible for supervisors’ failure to dis- cipline? To what extent are supervisors responsible for their own lack of action in appropriate disciplining?

4. Describe the steps in the progressive discipline procedures. 5. What test must a plaintiff meet in order to have standing in a whistle-

blower case? 6. What role does insurance play against potential wrongful termination

actions? How might an insurer seek to defend itself against such a suit?

7. When is an exit interview indicated? What are the gains for management? The risks?

8. What measures may mitigate the unlikely possibility of violent behavior from a disgruntled terminated employee?

ENDNOTES 1 H. Fayol (1987). General and Industrial Management. Rev. by I. Gray. Belmont, CA: David S. Lake Publishers. 2 The psychiatric diagnosis for such a person may be adjustment disorder. The predom- inant manifestation is inhibition in work or academic functioning, occurring in an individual whose previous work or academic performance has been adequate. See: H.I. Kaplan and B.J. Saddock (1981). Modern Synopsis of Comprehensive Textbook of Psychiatry/III. Baltimore, MD: Williams and Wilkins, Ch. 23. 3 “U.S. Postal Service: Discipline Practices Vary” (1989). Washington, DC: U.S. General Accounting Office. 4 M.A. Rothstein, C.B. Craver, E.P. Schroeder, and E.W. Shoben (1994). Human Resources and the Law. Washington, DC: Bureau of National Affairs, Ch. 8. 5 “Guardsmark Continues Fight to Have Employees’ Restrictive Work Covenant Respected” (January 16, 1995). Security Letter, Part III, p. 1. 6 M.A. Rothstein, C.B. Craver, E.P. Schroeder, and E.W. Shoben (1994). Human Resources and the Law. Washington, DC: Bureau of National Affairs, p. 422. 7 Ibid., p. 425. 8 Ibid., p. 427.

Endnotes 215

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9 Ibid., p. 437. 10 J.B. Kauff, A.P. Rosenberg, and H.H. Weintraub (1981). “Terminating the Employment Relationship—Under Increasing Restraints,” in Employment Law: New Problems in the Workplace. New York, NY: Practicing Law Institute, p. 162. 11 M.A. Rothstein, C.B. Craver, E.P. Schroeder, and E.W. Shoben (1994). Human Resources and the Law. Washington, DC: Bureau of National Affairs, pp. 438–47. 12 Ibid., p. 450. 13 D.P. Westman (1991). Whistleblowing: The Law of Retaliatory Discharge. Washington, DC: Bureau of National Affairs. 14 J. Barbash and J.D. Feerick (1981). Employment Law: New Problems in the Workplace. Litigation and Administrative Practice Series. New York, NY: Practicing Law Institute, p. 163. 15 P. Leavitt (Ed.) (1998). Avoiding Liability in Hotel/Motel Security, 2nd ed. Atlanta, GA: Strafford Publications, p. 294. 16 Ibid. 17 Ibid, p. 231. 18 Private Security Case Law Reporter (March 1996), p. 8. 19 P. Leavitt (Ed.) (1998). Avoiding Liability in Hotel/Motel Security, 2nd ed. Atlanta, GA: Strafford Publications, p. 290. 20 C.E. Miller (March 20, 1989). “Wrongful Termination.” Business Insurance, p. 27. 21 J. Barbash and J.D. Feerick (1981). Employment Law: New Problems in the Workplace. Litigation and Administrative Practice Series. New York, NY: Practicing Law Institute, pp. 164–65. 22 Ibid. 23 Security Letter (December 15, 1987), Vol. xvii, p. 1. 24 M.D. Kelleher (1996). New Arenas for Violence: Homicide in the American Workplace.Westport, CT: Praeger, p. 131. 25 S.A. Baron (1993). Violence in the Workplace. Ventura, CA: Pathfinder, pp. 103–04. 26 S.L. Heskett (1996). Workplace Violence: Before, During, and After. Boston, MA: Butterworth-Heinemann, p. 85. 27 R.B. Cole (1997). Corporate Personnel Protection. Springfield, IL: Charles C Thomas, p. 343. 28 G. de Becker (1995). “The Most Powerful Man in the Company.” In The Complete Workplace Violence Protection Manual. J.W. Mattman and S. Kaufer (Eds.). Costa Mesa, CA: James Publishing, Vol. 2, pp. 8–25. 29 J.A. Kenney (1995). Violence at Work. Englewood Cliffs, NJ: Prentice Hall, p. 183.

ADDITIONAL REFERENCES

M. Boyle (March 19, 2001). “The Not-So-Fine Art of the Layoff.” Fortune, p. 209. C.P. Nemeth (2005). Private Security and the Law; 3rd ed. Burlington, MA: Elsevier

Butterworth-Heinemann. S.A. Teicher (March 1, 2004). “Judged by the Content of Your Credit Report.” Christian

Science Monitor, p. 14. H.G. Wood and C.F. Bridge (1997). A Treatise on the Legal Remedies of Mandamus and

Prohibition, Habeas Corpus, Certiorari, and Quo Warranto: With Forms, 3rd ed. [originally pub. 1877]. Littleton, CO: Fred B. Rothman & Company.

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