We terminated an employee for having whiskey on his breath while working on a customer's car in our auto repair shop in violation of our safety policy. We received a letter from his attorney, claiming he was "wrongfully terminated" and demanding the employer pay a settlement of $10,000. What shall we do?
This letter is the potential beginning of a litigation process. As such, the response to it should be crafted with the assistance of your local attorney.
If you have insurance that may cover the complaints of the former employee, read your policy and/or confer with your agent/broker or your carrier. You may have to send the letter to your insurance carrier.
Maintain all documents relating to this former employee, including any texts, emails, wage records, write-ups, commendations – everything in the personnel file.
If the letter from the former employee's attorney also requested a copy of your personnel file on the former employee, check with your local counsel before responding. A few states have no statute regarding personnel files, and you may have no obligation to turn over any of your records.
Many other states, however, have statutes that specifically address requests for personnel files, but these can vary as to how they define "personnel file" contents (could differ from what you have in your file on this employee), when you must respond, how you must respond, and potential fines for failing to do so.
Finally, privacy and health information protections must be considered when responding to a request for a personnel file.
Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.
If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.
