Protecting Pregnant Employees from Themselves— I Can Do That Right?

The Original Complaint

Its 4:00 pm on a Friday and everyone at “Burger City” is looking forward to the weekend. Burger City’s HR Director (“Director”) has begun to pack up her belongings when she hears a knock on her office door. In walks Jane, a new employee who was recently hired by her best friend, one of Burger City’s longtime managers.

Jane claims she is being “harassed” by her manager – the same manager who hired her – and she demands the Director do something to stop it. The Director instructs Jane to sit down and to tell her exactly what has happened. Jane explains for the past month the manager has scheduled Jane to work only the dreaded nightshifts. The Director listens patiently before asking if there is any other incident or example of harassing behavior. Jane says “no.” The Director ensures Jane she will talk to the manager and investigate the complaint.

The situation seems simple: the employee is unhappy about her shift and blaming her manager. The Director glances at the clock on the wall which reads 4:20 pm – plenty of time for a quick chat with the manager.

The Interview with the Manager

Unfortunately, the conversation was not quick! The manager explained she has scheduled Jane for the nightshift because Jane has been tormenting another employee. A month ago, the manager received a telephone call from an angry woman claiming Jane was sending her 16-year-old son sexually explicit text messages and photos, which the mom had discovered on her son’s phone. The photo showed Jane in a “compromising position” in Burger City’s storage unit. Not wanting to get her friend in trouble, the manager simply separated the two employees and told Jane to knock-it-off. The Director decides to talk with Jane.

The Interview with Jane

The Director telephones Jane to confront her about the inappropriate text messages and photos. Jane admits to sending the text messages and photo but explains the 16-year-old is her boyfriend and they are in a consensual relationship. Jane further admits she and her boyfriend did occasionally sneak away to the storage room, while on the clock, to just “hang-out.” Jane claims the manager has a crush on her boyfriend and has been asking him out on dates for months. Jane believes the manager assigned her to the nightshift so she could be alone with Jane’s boyfriend. The Director glances at her watch, sighs and heads over to talk to the 16-year-old who is currently working as a cashier.

The Interview with the 16-year-old

As soon as the employee sees the Director walking towards him, he begins to shout, “I don’t care what you think, I can wear whatever I damn want to!” Confused, the Director glances at the cashier and sees he is wearing a nose ring and army boots – both violations of the company’s dress code. The Director attempts to speak with him but the employee continues shouting at her (about his right to freedom of expression). Meanwhile, there are a line of customers waiting to order.

The Director calls over the manager to help. Together they are able to calm the employee down and convince him to come into the Director’s office to talk.

What to Do?

How should the Director proceed? Three employees, three big problems! Without delay, the Director documents her conversations with the employees and the manager. She decides to take the following action:

The Manager – The manager failed to report the allegation made by the employee’s mother, failed to speak with the employee, failed to address the situation with Jane, and asked a subordinate for a date (assuming this is confirmed). The manager’s poor judgment put the company at risk. The Director made a note to call the manager to give her an opportunity to respond. The manager will be disciplined and possibly terminated, depending on her response. The situation with the two employees is much more complicated.

Jane – Jane made a complaint and the company must avoid retaliation, or the appearance of retaliation. That said, Jane has admitted to “sneaking” off with another employee while on the clock. Jane should be talked to about this practice and the situation should be addressed according to the company’s policies and practice.

The 16 Year-Old – The Director will talk to the employee about his relationship with Jane and the manager. The allegations made by the mother and Jane are serious and the company must investigate and take immediate and corrective action depending on the outcome of the investigation. The Director will speak only with the employee, not the mother. The company still must address the employee’s insubordination and blatant violation of Burger City’s dress code. The Director decides to give the employee a written warning addressing both the policy violation and yelling at her in front of customers. The Director considered termination but given the other existing issues, she ultimately settled on a written warning.

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