LESSONS FOR EMPLOYERS ARISING FROM THE PATRIOTS ATTEMPT TO SACK THE NFL’S INVESTIGATION

The NFL vs. Tom Brady saga is the gift that keeps on giving.  Yesterday, the New England Patriots released a statement called “The Wells Report in Context.”  It should be named “An Attack on the Wells Report and Why We Hate the NFL” because it goes after Wells’ conclusions — which conclusions the NFL adopted — in a multitude of ways.

The Patriots statement attacking the Wells report is often as amusing as it is long.  One example:  According to the Patriots, ball boy Jim McNally didn’t call himself “The Deflator” because he took air out of footballs at the behest of Tom Brady;  he called himself that because he’s overweight and trying to lose a few pounds.  Many doubt the Patriots spin on the self-styled “deflator.”

ANY ORGANIZATION THAT CONDUCTS AN INVESTIGATION SHOULD EXPECT THAT IT WILL BE SCRUTINIZED

When any business conducts a workplace or other investigation, that investigation may later be challenged in an EEOC proceeding, lawsuit, or arbitration.  It is thus critical to get the investigation right — to make it unassailable.

But investigations often involve difficult credibility calls, memory foibles, and ambiguous evidence.  What if a company’s “heart” is in the right place — it means well — but it is later proved that it came to the wrong conclusion?

EMPLOYERS ARE HELD TO A GOOD FAITH STANDARD, NOT ONE OF PERFECTION 

If a company terminates or disciplines an employee based on a good faith, reasonable belief that an employee engaged in misconduct, but is later shown to be mistaken, the company will likely not  be found liable for discrimination.

For example, in Cervantez v. KMGP Services Co. a company fired an employee after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the employee was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act.

After he was fired, the employee obtained a copy of the log of Web sites he allegedly visited with his User ID. He admitted that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.

A federal court found that the employer’s reason for discharging the employee – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court ruled that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”

THE SAME “GOOD FAITH” STANDARD APPLIES TO EMPLOYEE COMPLAINTS

An employee is protected against retaliation for opposing perceived
discrimination if the employee had a reasonable and good faith belief that the opposed practices were unlawful.  Thus, employer retaliation can be found whether or not the challenged practice ultimately is found to be unlawful.

As one court  has stated, requiring a finding of actual illegality would “undermine Title VII’s central purpose, the elimination of employment discrimination by informal means;  destroy one of the chief means of achieving that  purpose, the frank and non-disruptive exchange of ideas between employers  and employees; and serve no redeeming statutory or policy purposes of its own.”

Here are two examples applying the “good faith” standard:

Example 1 – Employee complains to her office manager that her
supervisor failed to promote her because of her gender.
(She believes that sex discrimination occurred because she
was qualified for the promotion and the supervisor promoted
a male instead.)  Employee has engaged in protected opposition
regardless of whether the promotion decision was in fact
discriminatory because she had a reasonable and good faith
belief that discrimination occurred.

Example 2 –  Same as above, except the job sought by Employee was
in accounting and required a CPA license, which Employee lacked
and the selectee had.  Employee knew that it was necessary to have
a CPA license to perform this job.  Employee has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
discrimination.

TAKEAWAY FOR EMPLOYERS

Perfection is not of this world.  Courts and judges recognize this fact.  Thus, if an employer terminates or disciplines an employee based on a good faith, reasonable belief of misconduct, in most cases the employer will obtain a defense verdict even if it is  determined the employer was mistaken.

The key, therefore, is for employers to be able to prove that they had a good faith, reasonable belief when they disciplined or terminated the employee.  This is primarily accomplished by conducting a prompt and thorough investigation when misconduct comes to light, and by maintaining a solid documentary record of the investigation and evidence proving the misconduct.

HR Law Insider’s next article will drill down on what constitutes a good investigation versus a bad investigation — providing  employers the tools to make good faith decisions that will withstand EEOC, court, and public scrutiny.

Until then, the football follies are sure to continue, providing more fodder for comics, who are having a field day:

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