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  1. #1
    MichaelJenkins is offline Junior Member
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    Employee Makes False Discrimination/Harassment Claim

    California

    I am the President of a company which has about 25 people, 4 of which are employees, the rest are independent contractors. While I was away, there was a verbal altercation between a male independent contractor and a female employee of mine. From what I hear, the independent contractor raised his voice and used prophanity (f-word) twice. He made no racial, sexual, or discriminatory comments. Although the independent contractor had every right to be angry, the female employee was crying about the situation. I spoke to her via phone, and she said everything was fine with him now, and she could continue to sit near him. However, today she sends me a long email (written by an attorney I’d assume) which she says 1) she’s reported the contractors behavior’s numerous times (she hasn’t), 2) he has made racial/sexual discriminatory comments to her (he hasn’t, and there is no proof of it), 3) she is losing sleep and cry’s every day 4) that I have not done anything about the behavior 5) asks for a response and a course of action for the issue.

    I am at a loss as to how to handle it. It is obvious she is trying to set up a lawsuit since all of her allegations are completely without merit. They are ludicrous, and it makes me wonder if I should keep her employed because the allegations are so obviously lies. However, if I terminate her, that would add fuel to her fire. My question is, what should my response include? What should it not include? Should I include the fact that she has never complained before? Or that she has told me everything was fine? Should I consult with an attorney now, and have him send her a letter?
  2. #2
    OHRoadwarrior is offline Senior Member
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    I don't know CA law, but I see the game. IMO, Terminate the employee and release the contractor. You are not playing favorites and have eliminated the problems.
  3. #3
    Banned_Princess is offline Senior Member
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    Quote Originally Posted by MichaelJenkins View Post
    California

    I am the President of a company which has about 25 people, 4 of which are employees, the rest are independent contractors. While I was away, there was a verbal altercation between a male independent contractor and a female employee of mine. From what I hear, the independent contractor raised his voice and used prophanity (f-word) twice. He made no racial, sexual, or discriminatory comments. Although the independent contractor had every right to be angry, the female employee was crying about the situation. I spoke to her via phone, and she said everything was fine with him now, and she could continue to sit near him. However, today she sends me a long email (written by an attorney I’d assume) which she says 1) she’s reported the contractors behavior’s numerous times (she hasn’t), 2) he has made racial/sexual discriminatory comments to her (he hasn’t, and there is no proof of it), 3) she is losing sleep and cry’s every day 4) that I have not done anything about the behavior 5) asks for a response and a course of action for the issue.

    I am at a loss as to how to handle it. It is obvious she is trying to set up a lawsuit since all of her allegations are completely without merit. They are ludicrous, and it makes me wonder if I should keep her employed because the allegations are so obviously lies. However, if I terminate her, that would add fuel to her fire. My question is, what should my response include? What should it not include? Should I include the fact that she has never complained before? Or that she has told me everything was fine? Should I consult with an attorney now, and have him send her a letter?
    It will be worth it to sit with an attorney about this.

    If you can pay him to respond, that would be worth it to.

    I would fire her, as long as the lawyer you consult with the facts and evidence, says its ok... immediately., him too while you are at it, that way it is all on the up and up.
  4. #4
    Beth3 is offline Senior Member
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    You're treading in dangerous waters. Consult an employment law attorney before taking any action. Spending some money now on an attorney to extricate you from the mess that is developing could save you many thousands of dollars down the road.

    What you need to do (actually, what you need to have an employment law attorney do) is conduct an investigation into her allegations before doing anything. Yes, her complaints may be totally bogus - but you can't just assume that. In order to have a legally sustainable response if the complaintant takes this further, you need to be able to demonstrate her allegations were fully investigated and you subsequently took whatever action is appropriate based on the results of the investigation.

    If you fire her at this point, she'll immediately bring a claim to the State/EEOC for retaliatory discharge - and that could cost you big-time.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  5. #5
    antrc170 is offline Member
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    I agree with Beth that an investigation is needed before termination of anyone.

    I don't think that you need an attorney or outside party perform the investigation. The investigator (be it yourself or someone else) needs:

    1. Obtain statements from victim, subject, witnesses at the very minimum orally but preferrably in written, signed format.
    2. Gather any relevant evidence to support any allegations. E-mails, security video, etc.
    3. Analyze the information and determine if the allegations are founded, unfounded, or unable to determine.
    4. Apply appropiate level of discipline.

    If you find that the allegations are unfounded (which you seem pretty sure of) then you need to issue letters to both parties with your findings. Terminating an employee for filing a discrimination claim regardless of if it is true can be grounds for retaliation and open you up to a lawsuit.
  6. #6
    tranquility is offline Senior Member
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    4. Apply appropiate level of discipline.
    How does one "discipline" an independent contractor?
  7. #7
    antrc170 is offline Member
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    Quote Originally Posted by tranquility View Post
    How does one "discipline" an independent contractor?
    Termination, reduced hours, or whatever other remedies are within the contract.
  8. #8
    OHRoadwarrior is offline Senior Member
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    Terminating an employee for lying is not. If OP has 4 employees, I would assume she reports to him. Who did she report all the other claims/issues too? The office goldfish perhaps?
  9. #9
    tranquility is offline Senior Member
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    Termination, reduced hours, or whatever other remedies are within the contract.
    If one side can terminate an independent contractor, what was the contract? Maybe you mean "not renew" the contract.

    The OP has to be careful of exercising too much control over the IC. If he goes to far, he may have gained 20 employees. (At least one of who may be a problem.)
  10. #10
    LdiJ is offline Senior Member
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    Quote Originally Posted by tranquility View Post
    If one side can terminate an independent contractor, what was the contract? Maybe you mean "not renew" the contract.

    The OP has to be careful of exercising too much control over the IC. If he goes to far, he may have gained 20 employees. (At least one of who may be a problem.)
    And since the "employee" and the "contractor" sit next to each other, the OP may already be walking a very thin line.
  11. #11
    tranquility is offline Senior Member
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    And since the "employee" and the "contractor" sit next to each other, the OP may already be walking a very thin line.
    I agree. In fact, that's the only reason I came into the thread, the mention of 25 people with 4 employees. I can see that being OK, but....I suspect the employer would rather this go away rather than take a position which could hurt later on.
  12. #12
    Beth3 is offline Senior Member
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    Quote Originally Posted by antrc170 View Post
    I agree with Beth that an investigation is needed before termination of anyone.

    I don't think that you need an attorney or outside party perform the investigation. The investigator (be it yourself or someone else) needs:

    1. Obtain statements from victim, subject, witnesses at the very minimum orally but preferrably in written, signed format.
    2. Gather any relevant evidence to support any allegations. E-mails, security video, etc.
    3. Analyze the information and determine if the allegations are founded, unfounded, or unable to determine.
    4. Apply appropiate level of discipline.

    If you find that the allegations are unfounded (which you seem pretty sure of) then you need to issue letters to both parties with your findings. Terminating an employee for filing a discrimination claim regardless of if it is true can be grounds for retaliation and open you up to a lawsuit.
    antrc, if the OP had any experience with this, I'd agree with you that an attorney is not needed - but he doesn't so doing his own investigation is a dicey process, especially with his complaintant seems to have received advice from legal counsel of her own and appears to be trying to set the company up for legal action (or at least a sizeable settlement.)

    Michael, this is entirely up to you of course, but I think you'd be well advised to get an employment law attorney involved in this situation ASAP. At the very least, he or she can be (and should be) coaching you or your designee from behind the scenes on conducting an investigation.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  13. #13
    commentator is offline Senior Member
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    Is it just me, or does something sound extremely hinky about the supposedly offended employee communicating all this to the OP by email? Attorneys don't generally do that, do they? Without signing it themselves, just tell the person what to say?

    I also have issue with the independent contractors here really being qualified to be independent contractors. That's another issue, which may come to light with any kind of further investigation.

    But in any case, her first course of action would be to file a complaint with the EEOC, not demand a response from you, via email. I suspect she doesn't have an attorney yet, maybe just a smart googling law student friend?

    But definitely, you should do a complete timeline on this situation, take statements from all the other employees, collect evidence (do you have a record of the telephone call in which she told you everything was all right?) and then talk to an employment law attorney. I agree with Beth, they need to have this as a specialty, because it is quite a dicey area.
  14. #14
    eerelations is offline Senior Member
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    Quote Originally Posted by tranquility View Post
    I agree. In fact, that's the only reason I came into the thread, the mention of 25 people with 4 employees. I can see that being OK, but....I suspect the employer would rather this go away rather than take a position which could hurt later on.
    I think the OP must have misclassified these ICs. I have a hard time envisioning a legit business where more than 80% of the workers are ICs.
  15. #15
    Beth3 is offline Senior Member
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    Is it just me, or does something sound extremely hinky about the supposedly offended employee communicating all this to the OP by email? Attorneys don't generally do that, do they? Without signing it themselves, just tell the person what to say?

    If the claimant is receiving legal coaching behind the scenes, then she may well have been advised to put this all in writing under her signature. Seems pretty clear she's "building a case."
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)

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