Reprinted from the February 1, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

ALL THE RIGHT MANAGEMENT MOVES:
Looking Into A Workplace Accident

Accidents happen. You never know when they will. But you should know the protocol for documenting and investigating incidents when they do.

NO-FAULT ACCIDENT?

“What do you mean there’s acid damage to your truck?” manager Oscar Aswari asked. “What happened?”

“Well, you told me to wash the truck before I left for the day on Saturday, so I did,” Don Herkle recounted. “I pulled up to the water hose, filled my bucket with soap and water, and then left the bucket by the truck while I went to the restroom. When I came back, I cleaned the front end first. When I rinsed it off, I noticed some discoloration. There must have been some acid already in the bucket. Or maybe someone did it on purpose to sabotage me!”

“Before you start jumping to conclusions, fill out this accident report first,” Aswari said as he handed him the form.

Herkle completed the form and returned it shortly. The manager read over Herkle’s account of the accident carefully. Something didn’t seem right.

“He says the damage occurred on Saturday, and he’s only reporting it now on Thursday. There’s no way I wouldn’t have noticed the discoloration earlier,” Aswari thought to himself. “I spent plenty of time doing work around the trucks on Tuesday and Wednesday mornings. It must have happened some time yesterday afternoon. I’ll have to look into this.”

MANAGER FINDS FAULT

The first thing Aswari did was look at the employee’s travel logs and time records. One fact jumped out at him. On Saturday, Herkle had clocked out 20 minutes after Aswari had told him to wash his truck. Twenty minutes was not nearly enough time to clean a truck.

There was the possibility that Herkle had done a cursory cleaning, so Aswari talked to others who were in that day. No one had seen him cleaning his truck on Saturday. But they had seen the employee put acid in a bucket and clean his truck with it on Wednesday.

Aswari confronted Herkle with his findings. The manager advised him that he was going to be fired for dishonesty.

“Wait a minute! Did you talk to everyone working on Saturday? I can give you the names of employees who will corroborate that I washed my truck that day.”

Aswari took down their names and privately pulled them each aside. Neither, however, could confirm Herkle’s assertion that he had washed his truck that day. With that, Aswari carried through with the termination.

Herkle came back with a race discrimination charge. He claimed that he was fired because he was black. His proof: Two white employees who also had acid-damaged trucks were not also fired. But the proof was in the manager’s pudding. While the two white employees’ vehicles also sustained acid damage, they had not lied about it. Case dismissed.

MLB SCORECARD

The manager washed the lawsuit away by handling the acid incident with aplomb.

1. Had the employee fill out an accident report form. Any workplace accident that causes damage to person or property needs to be documented. It is important to be able to determine the cause, fix it, and ensure that an incident doesn’t recur.

2. Initiated an investigation. While the manager could have fired Herkle for lying based on his assumption that he would have seen acid damage in the few days between when the employee alleged the incident occurred and when he reported it, it was smarter to establish more solid proof of his suspicion. He did so by checking time records and getting co-worker statements.

Remember, the workplace is not a court of law. You do not need proof beyond a reasonable doubt. Reasonable proof that your decision was not based on a protected characteristic can successfully defend against a discrimination claim.

3. Kept the investigation doors open. After you’ve made the decision to terminate, you are under no legal obligation to consider the employee’s protests and continue the investigation. However, doing so shows good faith, and, in this case, further bolstered the manager’s case against the employee.

4. Established a case of dishonesty and falsifying company documents. The employee alleged discrimination based on the fact that two white employees were not fired for having acid-damaged trucks. However, the circumstances of his situation were different — and more serious — because he had lied about the damage.

More information about this publication/Order a subscription