Often times I write about examples in professional sports of day-to-day employment issues. Athletes, their teams, and their leagues are no different than typical employees/employers in their actions and an athlete’s conduct is magnified by the ever looming sports media. To compound the situation, the employees (athletes) are highly paid, very young, and often have extremely bad judgment.
Which brings us to the latest high-profile NFL harassment/ bullying incident. Bullying has become the popular label for way too many things. I’m not sure what Richie Incognito did to Jonathan Martin qualifies as bullying or hazing but I do suspect that most employers would conclude his actions are not appropriate for the work place.
Regardless, Incognito singled out and targeted an African-American and even left profane voice mails for him with racial slurs. So how would a Texas employer handle such a situation?
First, hopefully the employer has some type of harassment policy in place either within the employment agreement or employment manual that specifically covers such type of conduct. Terminating the employee after some due diligence could be appropriate especially when they are in violation of a clear policy.
Nevertheless, even if there is not a policy in place, as an “at-will” employer, a Texas employer can fire an employee for any non-discriminatory reason. Assuming that the conduct complained of is sufficient to form the basis for firing the employer can fire the offender. Of course, here there is an NFL player involved, who has a collective bargaining agreement. This could also come into play for any employee who has some type of employment term, compensation agreement or other type of agreement that could potentially bring suit over if they claim that the firing was improper. Often times such agreements have "for cause" firing terms within the agreement that may be tied to compensation. The point is for the employer to makes sure to appreciate the interplay between the contract and firing.
That brings us to the next issue, how should the employer investigate the bad acts? In most small companies, the employer put some type of ad hoc group together or committee or something along those lines to investigate what occurred. If the company is small enough it could be simply a human resources person or officer/executive within the company. The problem in smaller businesses is that person is probably too close to the situation. These are the types of things that need to be considered and often times a smaller employer may retain a lawyer to handle the investigation. (The NFL has hired an independent investigator to deal with the Dolphin situation.) This will depend upon the circumstances and gravity of what is alleged.
In larger companies there may be a defined process or appeal process within the employment manual or elsewhere that governs any type of investigation.
The take away from the Dolphin situation is twofold (1) does your company have an appropriate harassment policy in place; and (2) how is your company going to handle such an investigation?
