More than good faith

Nora Akins

Until recently, misconduct investigations used the good faith standard. Before the Vasquez case, employers were required to act in good faith before taking adverse action against an employee.

The Andrea Vasquez v. Empress Ambulance Services, Inc. case raised the standard for employment investigations. This 2nd U.S. Circuit Court ruling expands the Supreme Court decision in the Vincent E. Staub v. Proctor Hospital. The Staub case revitalized the “Cat’s Paw” fable. In Aesop’s fable, a clever monkey, not acting in good faith, convinced the cat to pull roasting chestnuts from the fire. The monkey ate all the chestnuts while the cat had nothing but burnt paws.

In the Staub case, Staub’s supervisor Janice Mulally was the monkey. Staub had a history of disappearing during the day and was in the Reserves which limited his weekend work schedule. Mulally made it known she wanted to get rid of him and intentionally scheduled him to work on Reserve weekends. Her disciplinary warning required him to report his whereabouts to her or her boss when he wasn’t with patients. One day, Staub stated he left a voice mail for the department head informing him that he was going to lunch. Upon return, the department head escorted Staub to the Human Resource (HR) office. Janice Buck, in HR, was the cat. She made the decision to terminate Staub. The Court said all supervisors are agents of the employer and Mulally’s anti-military spite motivated the adverse action. The Supreme Court ruled the employer is liable if the supervisor’s actions are motivated by antimilitary animus intended to cause adverse action and that action results in “the ultimate employment action.” This 2011 decision was a game changer. HR needs to conduct a misconduct investigation in good faith before taking that ultimate employment action.

That was then, the 2016 Vasquez case is now. Andrea Vasquez complained to her supervisor that her co-worker, Tyrell Gray, was sexually harassing her; sending her obscene photos and texts. She was told her complaint would be investigated. Gray learned of the complaint and manufactured evidence making it appear that Vasquez and Gray had an affair. Empress terminated Vasquez for her false claim. Empress did not examine her phone and Gray’s phone to discover whether the printed texts were altered, as Vasquez requested. Gray was the monkey and Empress was the cat.

The Vasquez case raises the standard of investigations not only for ultimate employment action, but for any adverse employment decision. Long gone are the days when employers could rely on having and enforcing a well-communicated harassment policy. Today, employers need to act in good faith, conduct a competent investigation that includes openly considering any evidence by the employee who believes the action stems from a malicious motive or questions validity of the conclusion. As always, it is best practice to document the investigative process. Some may see the paws of all employers burned as a result of the Vasquez case. Others see the standard of respect in the workplace elevated.

Nora T. Akins, of Strategic Management provides management training and refines human resource systems to help employers build respectful workplaces. Reach Nora at 219 873-1735 or nora@managepeopleright.com.

 

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