Bob Smith started working for you four weeks ago. He has already missed two days of work, been tardy, left early one day and when he is at work, his production is mediocre. You have a 90-day probationary period in your employment policies and it is becoming clear to you that Bob is not going to make it through that probation. Can you fire this four-week employee without any unemployment or discrimination liability?
Unfortunately, the answer in Texas is “no”. As soon as Bob became your employee, he became your problem. This is one reason that the hiring process ought to be very demanding, including checks of all of his past employers, criminal records, drug screening, etc. to discover at least the most obvious problems before you put him on the payroll. But many past employers won’t tell you anything about Bob’s dependability, so it is not surprising that he got through the hiring hurdles.
So if you decide to fire him today, what kind of liability can you face as an employer? In Texas, you will probably be charged back for his unemployment benefits by seeing an increase in your unemployment tax rate on all of your employees for the next three years. That is a stiff price to pay. There is a chance you will get lucky and not get the charge back if Bob falls into a narrow category based on how much he worked before you hired him. The explanation for that can be found on the Texas Workforce Commission website (click here).
Assuming that you don’t get that lucky or you don’t want to count on luck, you can document Bob’s problems, give him a written warning and then fire him for misconduct as you would any longer-term employee so that you have a way to fight the unemployment claim. This will go better for you if your policy manual makes it clear that absenteeism during the probationary period is not allowed. There is nothing wrong with requiring your new employees to show up every day for the first three months. You would think that most new employees would want to do that just to prove themselves, but I am constantly amazed by the slackness that many new employees bring to the workplace.
What about discrimination? Surely you can’t be held liable for something that happens to a new employee in the first few weeks? Think again. The United States Sixth Circuit Court last year upheld a $1.2 million sexual harassment claim for an employee who had only worked for five weeks at the company. In her third week of employment, she complained to her trainer and supervisor about the comments, touching, whistles and lewd gestures she was receiving. The supervisor moved her, but unwisely said, “That’s just how they treat their women over there,” and requested that she not tell the human resources department.
After another two weeks without improvement, the new employee told the human resources manager about the problem. He promised to investigate, but didn’t, so she filed a charge with the EEOC and later, a lawsuit. The trial court and the appellate court found that the employer’s response to the employee’s sexual harassment complaints showed reckless indifference to the new employee’s federally protected rights, supporting not only a judgment against the employer, but also an award of punitive damages.
There are all kinds of problems with the supervisor and the human resources manager’s responses to the sexual harassment complaint that have been discussed in other entries on this blog, but suffice it to say here, the fact that the employee only worked five weeks did not insulate the employer from any liability in this case. Your responsibility as an employer to protect your employees from discrimination kicks in on their first day of work and continue throughout their employment.