By William Wiley, December 13, 2017
Pop Quiz: What do these three individuals have in common?
- Charlie Rose
- Matt Lauer
- Garrison Keillor
Answer: No doubt, a list of very descriptive words came to mind when you were trying to come up with an answer. Well, since this is an employment-law-like newsletter, you might have guessed that is the sort of answer we’re looking for. When you come at it from the human resources direction, the answer relevant to all you readers is this:
They each were fired within about 24 hours of being charged.
When this topic came up in one of our famous FELTG seminars a week or so ago, one of the attendees opined that it would be great if we could move that quickly in the federal government when we come across a bad employee.
Well, we can. More or less.
Using the Lauer situation as an example, here’s what’s been reported:
- One of Lauer’s coworkers, accompanied by her super-duper attorney, met with representatives of the company’s human resources office. In that meeting, the former co-worker described in graphic detail unwelcome sexual contact initiated by Lauer.
- Human resources confronted Lauer with the charge, which he did not deny (or may have even admitted; I can’t tell from the news reports).
- Lauer was then fired.
There’s no reason that a good human resources office in a federal agency could not essentially accomplish this same result if there were a sexual harasser in the workplace, with a bit of tweaking to comply with the civil service law.
- You would have a sworn statement from the victim. That’s a preponderance of the evidence. No need for a big investigation or a bunch of witness interviews. It is more likely than not that the event occurred if she said it did, she’s credible, and there’s no evidence it did not occur.
- Because it’s the federal government, we would have to draft a proposal to remove. That should take maybe 15 minutes: “By this memo, I propose that you be removed based on the following charge. On November 30, 2017, you coerced Vickie Victim into having unwelcome sex with you.” Attach to the memo the sworn statement above.
- Unless you are fortunate enough to work at DVA, you’ll need to complete a Douglas Factor worksheet. If you can’t pump up Douglas Factor 1, the nature and seriousness of an offense like this to justify a removal, you need to come to one of our classes. Commenting on all 12 Douglas Factors should not take more than 20 minutes.
- In the proposal notice, above, include a paragraph that places the employee on Notice Leave. That way, you can get the employee out of the work place the same day that you draft the proposed removal which should be the same day you obtain the sworn statement.
In the private sector, where the darned Constitution doesn’t apply, they guy stops getting paid that day. However, in the fed, we’ll need to give the dude a seven-day chance to defend himself orally and in writing, and can’t issue a final decision until Day Eight. At least he’s out of the workplace all this time. In most cases, we’ll have to pay him for another 22 days because the law says so, but he’s already fired. In some cases, you’ll be able to get him off the payroll on Day Eight if you conclude the misconduct amounts to a criminal assault or some other crime that could involve jail time.
Can your human resources office do this? If not, then you should fix that. Victims in cases like these, as well as the citizens of our great country, deserve swift justice. Does your legal office see a problem with moving this quickly? Then the folks over there need to read a few MSPB cases to find out how expedient this can be.
We take a lot of flak in the fed for not acting quickly to hold employees accountable. The recent incidents reported in the press give us a reason to rethink how we initiate removal actions in egregious circumstances. Here at FELTG, we recommend that you get your best minds together and develop a predetermined procedure with specific assignments and draft templates to deal with issues like these before they occur. Our coworkers who are the victims of sexual misconduct deserve no less.
As my grandmother used to say, “It doesn’t do any good to order the fire extinguisher after the fire has started.” And as I learned in the Boy Scouts many years ago, “Be prepared.” Be ready for things like this to happen, because they are going to happen again, Mister, they are going to happen again. Wiley@FELTG.com