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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14619
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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I gave an employee of mine her performance review..which wasnt

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I gave an employee of mine her performance review..which wasn't what she expected. 2 days later HR contacted me to tell me she filed a complaint that I inappropriately hugged her 2 months prior at an employee fundraiser I was hosting. Mind you my wife was there with me at that time. I don't recall doing this. This person has filed many complaints on numerous people in the past years. She never said anything when it supposedly happened or anytime up to right after her review. Is this a firable offense? Seems like retaliation to me.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Legalease replied 1 year ago.

Hello there

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How long has she worked for you? And for the company? How long has she had performance problems?

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Does your wife remember a hug with anyone there? Would hugging fellow employees be a normal occurrence at such a fund raiser?

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MARY

Customer: replied 1 year ago.


she has worked for me since May 1, 2012. Had documented history of problems ever since.


 

Customer: replied 1 year ago.

My wife doesn't remember this instance. She only remembers meeting her briefly.

Expert:  Legalease replied 1 year ago.

Hello again -

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Unfortunately, every company has the legal obligation to investigate any complaints of sexual harassment or discrimination under the Title VII of the civil rights act and if the company fails to thoroughly investigate any complaint then in any later action that the employee may bring at the EEOC or in a private lawsuit situation the fact that the company did not investigate can be used against the company as a deliberate cover up to protect the accused and the company. Thus, your company has no choice but to investigate thoroughly and document the investigation and reach a conclusion regarding whether the accusations are based in fact or not. If the company decides that her accusations had some truth to them then the company can handle such a matter in any way that they fit -- including separating the two of you (placing her with another supervisor), requiring mandatory classes for sensitivity training and up to and including termination if they see fit. However, given her track record and short employment history it is more likely than not that the company will see through this situation for what it really is -- an attempt to influence her future employment by attacking the person who gives her the performance reviews. Another added bonus for her is that even if the company does not find in her favor, there is still a presumption of retaliation against her if the company fires her in the year after she makes the complaint -- which could force the company into a position of defending an investigation by the EEOC and demonstrating that the reason she was terminated was due to incompetence and not the fact that she made a complaint against you to the company. It simply makes it harder to terminate her for a while after the investigation is completed whether the HR department finds that her complaint was warranted or not. And my bet is that she is aware of all of the ins and outs of the sexual harassment in the workplace rules and requirements that the company investigate thoroughly and refrain from any retaliatory poor performance reviews or terminations in the year following the incident.

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Overall, the incident seems cynically staged by her (if it happened at all, which you will deny by stating that you do not remember) and I do not see anything coming from this other than having to retain her as an employee for longer than you might want to in order to get beyond the one year after the incident presumption of retaliatory termination for filing a complaint. Under the circumstances, if HR does not make any moves to alleviate the situation, I suggest to you that you ask HR to move her to another supervisor if possible and if not possible, see if you can get another manager to give her performance reviews and any other admonishments or write ups that may need to be done over the next year or so of her employment. Overall I do not think anything will come of this given her track record, but, as I said, the company is required to investigate.

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MARY

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Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14619
Experience: 13 years experience in employment law, unions, contracts, workers comp law
Legalease and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


Great feedback on this situation. I just received another notice late today that HR wants to discuss yet another item which tells me she may have filed yet another complaint while this original is being investigated. If she is allowed to continue to do this, then she can file complaints weekly. When does it stop?

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