Can a legal action still be harassment?

[Cross Hair]

What is the name of your state (only U.S. law)? Ohio

Small business owner here, 12 employees in shop.

I have an employee who just served a three day suspension for sexually inappropriate comments to another employee, he told a young girl four times she should take her clothes off and ten minutes later continued the dialogue by asking "did I miss it?"
The suspended employee was already working under a written reprimand for job performance issues. Yesterday a different employee approached me and said he believes the recently suspended employee was video taping him, he saw the guy holding his phone in the right position and following his movements. Then in the after noon the recently suspended employee was caught by his supervisor hiding behind a pallet rack holding his phone in the picture taking position, the supervisor walked up behind him and said he clearly saw the image of two employees on the screen, one being the young girl who he had made the offense comment to. The supervisor immediately confronted the guy and scared him so badly he dropped his phone into a box of parts.

Employee claimed he was simply trying to find a radio station, said employee later came into my office to complain he is being falsely accused of video taping other employees, he offered to show me his phone which I declined since he had plenty of time to erase any pictures or videos.

So here's the question. In Ohio it appears lawful to record or video tape others in public environments, including the workplace, and this issue isn't addressed in our company handbook so it appears he is doing nothing illegal or against company policy. But because of his history of recently being suspended and the fact he was observed with his phone focused on the young girl he offended to get himself suspended can we call that another case of harassment and terminate his employment? Even though she wasn't aware of his actions?

We don't want to get wrapped up in a lawsuit over wrongful termination, even though in Ohio you can terminate without cause those kind of laws are very grey in my opinion.

 

[Just Blue]

What is the name of your state (only U.S. law)? Ohio

Small business owner here, 12 employees in shop.

I have an employee who just served a three day suspension for sexually inappropriate comments to another employee, he told a young girl four times she should take her clothes off and ten minutes later continued the dialogue by asking "did I miss it?"
The suspended employee was already working under a written reprimand for job performance issues. Yesterday a different employee approached me and said he believes the recently suspended employee was video taping him, he saw the guy holding his phone in the right position and following his movements. Then in the after noon the recently suspended employee was caught by his supervisor hiding behind a pallet rack holding his phone in the picture taking position, the supervisor walked up behind him and said he clearly saw the image of two employees on the screen, one being the young girl who he had made the offense comment to. The supervisor immediately confronted the guy and scared him so badly he dropped his phone into a box of parts.

Employee claimed he was simply trying to find a radio station, said employee later came into my office to complain he is being falsely accused of video taping other employees, he offered to show me his phone which I declined since he had plenty of time to erase any pictures or videos.

So here's the question. In Ohio it appears lawful to record or video tape others in public environments, including the workplace, and this issue isn't addressed in our company handbook so it appears he is doing nothing illegal or against company policy. But because of his history of recently being suspended and the fact he was observed with his phone focused on the young girl he offended to get himself suspended can we call that another case of harassment and terminate his employment? Even though she wasn't aware of his actions?

We don't want to get wrapped up in a lawsuit over wrongful termination, even though in Ohio you can terminate without cause those kind of laws are very grey in my opinion.

Does this sexually offensive employee have a contract? If not why wasn't he fired?

 

[PayrollHRGuy]

Wrongful termination is termination for an illegal reason such as because of his age, sex, race, or any of the other protected classes.

Being a creepy SOB is not a protected class. He'd be gone already had I been you.

 

[quincy]

What is the name of your state (only U.S. law)? Ohio

... We don't want to get wrapped up in a lawsuit over wrongful termination, even though in Ohio you can terminate without cause those kind of laws are very grey in my opinion.

There is nothing "grey" in what you describe. Your hesitation in firing the employee is puzzling.

 

[cbg]

In an at-will state, which is every state except Montana and even includes Montana in some circumstances, you can fire him because the day of the week ends in Y. Fire his ass. He doesn't have anything close to a shred of a wrongful termination claim. You can't stop him from suing, but unless you've left out some major facts, if he sued, he'd lose.

 

[Taxing Matters]

We don't want to get wrapped up in a lawsuit over wrongful termination, even though in Ohio you can terminate without cause those kind of laws are very grey in my opinion.

You are not bound by the policies in your handbook unless you have made the mistake of releasing an employee handbook that will be treated as a contract. If you are not bound by the policies in your handbook, and assuming no union collective bargaining agreement applies, you may fire this employee for the inappropriate behavior. And given that his sexually harassing behavior, should it occur again, will expose the company to a sexual harassment lawsuit I would have fired him from the start rather than merely suspending him. This guy is just trouble waiting to happen. The sooner you are rid of him, the better. If you have any concern that the handbook may amount to a contract or are otherwise concerned about a wrongful termination lawsuit from the guy then by all means consult an employment law attorney. But do it quickly so you can get this guy out of there ASAP.

 

[Cross Hair]

This is the OP. Yes I agree the guy needs to be terminated, and I have been trying to get that done, but I am third in command around here and keep getting over ruled on what action should be taken. My partner and the CEO insist on a documented chain of events to prove we have done everything in our power to give the problem employee a chance to get his act together. Trust me, I am more frustrated than anyone having to deal with this guy, partner and CEO are out of town now but I will discuss this latest issue with them Monday and hopefully we can put an end to it.

Thanks for the replies.

 

[PayrollHRGuy]

Well then write the guy up again in the BROADEST manner you can think of for creepy actions and put him on notice that if he does any more creepy actions he will be terminated.

P.S. It doesn't matter that videoing is legal in your state. If you tell the employee it isn't legal where he works it is good cause to terminate to any agency that matters.

P.P.S. If one of the people that he was videoing happened to be the young girl your bosses need to be a lot more concerned about the suit that would come from that than anything from the creep.

 

[Ohiogal]

Well then write the guy up again in the BROADEST manner you can think of for creepy actions and put him on notice that if he does any more creepy actions he will be terminated.

P.S. It doesn't matter that videoing is legal in your state. If you tell the employee it isn't legal where he works it is good cause to terminate to any agency that matters.

P.P.S. If one of the people that he was videoing happened to be the young girl your bosses need to be a lot more concerned about the suit that would come from that than anything from the creep.

Not only videotaping but lying about it. That is insubordination to lie to a supervisor/employer. That is another thing. They should fire the guy.

 

[LdiJ]

Well then write the guy up again in the BROADEST manner you can think of for creepy actions and put him on notice that if he does any more creepy actions he will be terminated.

P.S. It doesn't matter that videoing is legal in your state. If you tell the employee it isn't legal where he works it is good cause to terminate to any agency that matters.

P.P.S. If one of the people that he was videoing happened to be the young girl your bosses need to be a lot more concerned about the suit that would come from that than anything from the creep.

And, you had better make DARN SURE that the young girl in question is fully protected at all times. You need to make absolutely certain she is never alone with him and in fact never alone at all in your parking lot or anywhere else. If the creepy guy does something to her because you guys were too wimpy to get rid of the guy then its on your shoulders morally, and maybe legally as well.

 

[PayrollHRGuy]

I just reread the OP and it was the young girl that the creep was videoing. If she came on here and asked the question "Should she file an EEOC claim?" with this fact set I think most of us would say yes.

To the OP. Suspend him again when you write him up again if your bosses won't let you fire him. And suspend him for as long as you can get away with. He might quit.

 

[quincy]

And, you had better make DARN SURE that the young girl in question is fully protected at all times. You need to make absolutely certain she is never alone with him and in fact never alone at all in your parking lot or anywhere else. If the creepy guy does something to her because you guys were too wimpy to get rid of the guy then its on your shoulders morally, and maybe legally as well.

Negligent retention comes to mind.

 

[Zigner]

As the OP, I would also be concerned about being personally named in any suit that came about.

 

[PayrollHRGuy]

As the OP, I would also be concerned about being personally named in any suit that came about.

Good point. If I was in the OP's shoes there would be emails sent to my bosses saying that he feels the creep should be terminated. Put it on them.

 

[HRZ]

And for that matter doing anything in hiding while behind a pallet rack while on the clock seems a super big red flag to me .

Long ago I got into a bit of hot water in HR when asked to opine about workers habitually sleeping on construction site..and my response was to ask why the direct supervisor was not fired. ..

You do have one loose end....merely goofing off behind a pallet rack mightn not be sufficient cause to block his qualification for UC....and apparently he served his punishment for his prior misconduct ...when you might well have fired him for misconduct. Now, if the hidden agenda is to fire with low risk he successfully gets UC you may need to wait until his next screwup that counts. And "proof" of specific misconduct while behind pallet rack depends a lot on credibility of actual witness/ supervisor **************

IF this creep does something in meantime against his prior female victim ....all bets are off as to financial future of your small firm