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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15472
Experience:  Employment/Labor Law Litigation
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We have an employee that blatantly ignores his duties that

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We have an employee that blatantly ignores his duties that are outlined in his job description, after two years of employment he still does not handle his basic duties without referring to another staff member for answers, repeatedly states something is not his job, has been written up for negligence and errors in performance, excessive absences. Our current director is afraid that if he is fired for failure to perform duties accurately or consistently that he will claim discrimination due to his sexual orientation. We have had homosexual employees in this position in the past, that left of their own accord for health reasons. Our previous owner is admittedly bi-sexual. If there is documentation of poor performance, failure to perform, and extensive absences can we terminate employment without fearing a discrimination finding by CDLE?
Submitted: 8 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 8 months ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

You shouldn't have anything to fear if you have properly documented the lack of performance. In these types of cases, it is the person claiming discrimination that has the burden of actual proving discrimination.

So, this person would have to prove that the basis that you are giving for the termination is false or inaccurate.

As for the other situation, with the employee that was terminated for being intoxicated, I believe that was a very different circumstance. The CDLE there didn't find wrongful termination or discrimination. They found insufficient evidence to support blocking unemployment, which makes sense. When an employer tries to block unemployment, it is the employer's burden to prove their case in order to block that unemployment. Because they didn't have the DRUG FREE workplace posted, they couldn't claim that the employee had notice of the rule (which is stupid, but whatever) so the employer didn't prove their case. The termination was still legal, but the employee also got unemployment.
Customer: replied 8 months ago.


The issue with the former employee was given as an example as to why our director is hesitant to fire anyone with any unusual life history. We have had lay-offs of part time employees due to budget constraints. However, this employee creates more work for others, has cost the company money with errors causing loss of reimbursement for services performed on our behalf by outside companies.

 

The employee looks for opportunities to cause conflict and tension between staff members, and our front office manager had given notice due to his performance and disrespect - she is his supervisor and he openly states she cannot tell him what to do. I am the Administrative Director, and he has blatantly stated that certain aspects of his position are not his responsibility - ie supplying lab test information to be submitted for billing, he says someone else has to get that, he is responsible for logging and sending lab tests to the out of state lab, and is responsible for providing missed and performed lab tracking info to our clinical staff, and should be providing this log to all clinicians as well as billing staff.

 

This creates an entirely different problem of other people having increased work load and hours, the director has negated his own employee compensation policies by giving this employee a raise, despite poor performance, yet says other employee's wages are "capped" (there are no wage caps in place in our P & P). How do I approach the director so he sees it is in his best interest and the companies best interest to resolve this before other staff members leave.

Expert:  Allen M., Esq. replied 8 months ago.
That's not really a legal question. If the director is not prepared to lead and basically operates from fear, there isn't anything that you're going to be able to tell him that will force him down the path of bravery here.

As an employment law attorney, all I can do is tell employers what the law supports for them. Just because this person is gay, that does not make them immune to termination. Our laws just don't work that way. Almost every person that you have to fire can manager to fit into one protected category or another....there are so many of them now. All you can do is document your basis for termination, be honest with it, and don't terminate too early. Allow there to be a good history built. Be consistent, meaning don't treat any one person better or worse than others.

If you do those things you can safely terminate someone.

But that's all I can tell you. I don't have any advice on what to tell your director. There is certainly no law that would force the employer to release the employee.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15472
Experience: Employment/Labor Law Litigation
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