DISCIPLINE : Employers’ Fear of Suits Keeps Problem Workers On
Frozen in fear of lawsuits or protracted administrative hearings, employers fail to seek termination proceedings against problem employees even when workers exhibit signs of destructive behavior, experts said Wednesday.
And in cases where public workers are further protected by government regulations and provided the representation of labor unions, some supervisors would rather not engage in the tedious documentation of employee performance required to initiate dismissals.
“We live in such a litigious society that many employers live in constant fear of being sued for taking what they feel are appropriate disciplinary actions,” said attorney Robert Gerard, chairman of the Orange County Bar Assn.’s labor law section. “We live in a day and age when employers are constantly dancing on eggshells.”
Gerard’s views represent half of the debate among those representing employers and employee rights, and it is one that has been brought into sharper focus since Tuesday, when a state hospital employee shot to death a supervisor and wounded two others at the Fairview Developmental Center in Costa Mesa.
“Supervisors tend to ignore the problems, hoping it all goes away,” said Tony Aguilar of the state Department of Fair Employment and Housing’s Sacramento district office. “The tendency is not to document things immediately until it really becomes a problem.”
The suspect in the Costa Mesa shooting, 37-year-old Michael Rahming, had a history of disputes with his bosses, and a psychiatric evaluation reportedly identified “problems” with the painter.
Although Rahming’s disputes appeared to be well-known to supervisors and colleagues, at least one hospital official said those facts are not necessarily good predictors of how an employee would respond in the future.
Larry Heads, Fairview’s affirmative action coordinator, said there is a general misconception that state employees at institutions like Fairview and elsewhere are more difficult to discipline because of existing government regulations.
“We’re not impulsive here to fire,” Heads said. “By all standards, he (Rahming) could do his job. He qualified in knowledge and ability. Nobody ever said he could not paint.”
Of the suspect’s employment-related disputes, Heads said the existing options available to Rahming, including grievance proceedings, were there to help him continue his employment at the hospital.
“I don’t have any hard evidence that Mr. Rahming was a threat,” Heads said. “We’re lenient, but we’re not stupid.”
Though not familiar with the Rahming case and his reported yearlong job-related disputes, state employment official Aguilar said the time it takes to initiate disciplinary action against state and other government employees often saps managers of the willingness to proceed.
Typically, following normal state guidelines, employee termination proceedings can take up to six months to complete under the best of conditions, Aguilar said.
According to Aguilar and an official with the state Personnel Board, once performance problems are identified, employees are provided retraining sessions. If problems are not resolved during this period (about 60 to 90 days), employees are generally given the same time period to meet specified goals or risk disciplinary action.
Before disciplinary actions can proceed, supervisors are required to notify employees of their rights to representation by labor officials. Employees are entitled to be present at a “first hearing” of the matter with their representatives. If the termination is upheld by the department, employees have about 20 days to appeal to the state Personnel Board.
At the end of that process, employees may still appeal to Superior Court or use the services of the fair employment and housing offices, where Aguilar said employees walk away with a monetary settlement or their jobs back about 25% of the time.
“There are some managers out there who enjoy that kind of stuff,” Aguilar said. “Taking adverse action is not easy.”
Michael Kirschbaum, an employee rights attorney based in Santa Ana, said employers are acting more cautiously these days, in view of what he described as a dramatic increase in court action involving employment issues.
“Most of the bigger corporations hardly make a move without consulting their in-house counsel,” Kirschbaum said. “Everything is done in a more cautious fashion.”
He said he often hears the cries of employers’ attorneys who claim that the increase in court action has paralyzed their clients against taking action against workers.
“I think it’s a good employment practice to have sound policies and procedures for employees to follow,” Kirschbaum said. “I don’t think good employers would mind having to keep documentation (of job performance), that way both parties know what is expected.”
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