He Said, She Said: What to Do When Nothing’s Clear

“I have two front office employees, Miranda and Charlie, who hate each other. If there’s some small, childish way to poke, prod, or annoy the other, they will do it. They constantly tweak each other’s schedules, complain if anything, including scrap paper, is moved around on their desk areas, and report each other’s inadequacies to me.

It drives me absolutely crazy.

As far as I can tell, Charlie is more the antagonizer, but Miranda overreacts in an extreme manner. Consider this latest drama:

The Great Pushing Incident

Miranda’s version of what happened: While she was seated, Charlie came up behind her, rudely accused her of not calculating a patient’s co-payment correctly, and gave her a three-fingered shove on the shoulder. This happened in a small office to the side and there were no direct witnesses.

Charlie’s version: He went into the office to—politely—ask Miranda why the co-pay appeared to be miscalculated. Miranda stood up, and in a very aggressive manner started towards him while shouting “lay off me, I’ll fix it.”  Charlie then “pushed” Miranda back because she was advancing on him.

The only witness’s version: My remaining front desk employee, Rachel, said that while she was facing another direction and didn’t see anything, she heard Charlie ask about the co-pay (in a reasonable manner), but that Miranda “lost her shit” and unleashed verbally on Charlie.

Clearly, there are discrepancies here and it’s past time for one of them to go. But before I fire, I want to know: Do I have any legal obligations, or can I pick who I want to terminate? Any advice?

Although he pushes Miranda’s buttons, Charlie gets along with everyone else and is good at his job. Miranda is okay, but can be forgetful and needs multiple reminders to get things done. However, she is a long-term employee.”

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We Answered:

We all wish employees would keep the drama out of the workplace, but with human resources, we have the inherent problem of human beings—drama happens! This particular incident is complicated because you do not want to retaliate against an employee for reporting a physical altercation—so it absolutely does need to be addressed. And because the altercation went beyond mere words, you have to be extra careful.

Drama—did I mention drama?  Well, how about a little legal drama! There’s more at stake here than you might think:

  • Miranda may have committed an assault on Charlie (if she intended to cause apprehension of harmful or offensive contact).
  • Charlie may have committed a battery on Miranda (if he intended his “push” to be an offensive contact).
  • You may eventually commit negligent supervision (if you unreasonably permit such conduct to continue in the workplace).

Oh yeah, and if either Miranda or Charlie are in a protected class, and you choose to fire one over the other, the choice had better be backed up by legitimate business reasons. If not, your choice could be misconstrued as discriminatory and become part of a wrongful termination case.

With that said, I think you can very likely de-escalate the incident and at the same time reduce or eliminate your legal risks. The number one thing you need to do is NOT to ignore it or chalk it up as a silly disagreement. Make no mistake, there are lots of ways this situation could be made worse!

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An “ABSIRD” Situation?

Your best path forward is also a good route to take for any type of employee incident. You can remember it by the acronym “ABSIRD.

  1. Abstain from taking sides
  2. Separate the employees
  3. Investigate the incident
  4. Remedy the wrongdoing, and finally,
  5. Document, document, document.

Start by affirmatively defusing the situation. Using a calm but firm demeanor, let the employees know you will get to the bottom of this, while making it crystal clear that this kind of behavior simply is unacceptable.

Next, you must take steps to separate the two for at least the remainder of the day. Quite likely, you haven’t planned for time to mediate an employee dispute in the middle of your day. How you separate them depends on your office size and resources. You might suspend them both for the remainder of the day, or re-assign one to back-office duties. This not only keeps them safe, it keeps their hostile energy from impacting your patients’ experience. Be careful—you might be inclined to send home the employee you initially see as the “offender.” But sending home only one person before you investigate can be seen as taking sides, and may give affirmation to someone who is just as culpable.

Your next step is to investigate. To do this, you need to have each person (and any witnesses) write down their version of the story for the record. Ask them to write up a detailed account of the incident. Again, document everything, including notes about any conversations, and your request for them to provide a statement.

For example:

“On ______ I received a complaint that there was a confrontation between you and another employee. We would like for you to please tell us in writing what happened.

You should include witnesses and any other details which would help us to understand the incident. In addition, we would appreciate it if you would tell us what you could have done differently during the confrontation. It would also be helpful to inform us as to what sort of outcome you would like to see.

Please email your response to me no later than tomorrow by 10 AM. At this time, I would like to remind you that we have zero tolerance for any further threats or attempts to resolve this in an unprofessional manner.

Once we have received your explanation, we will inform you of the next step.”

Keep them separate or off the schedule until you receive the statements and have a chance to respond.

Depending on what you see in the letters, I’d then sit these employees down separately and have a serious conversation with them about professional communication and behavior in the office. I might tell them that they don’t have to get along, but in order to keep working for you, they do need to get along at work. Bring up personal responsibility and the role each of them plays when they participate in arguments and unprofessional conduct. I’d also try to get each of them to estimate, for the record, how many times they’ve had trouble with the other. Take notes of your conversation.

The next step is to make a determination as to the most reasonable action you can take in response to the facts presented. You’re not a judge or jury. You are merely trying to draw the most reasonable conclusions from what you know and don’t know. At a minimum, one or both should receive a written warning.  If one person is found to be without fault (not likely!), you still want to issue a response to the other, letting him or her know what steps you have taken, and to assure him or her that further violation of your policies will not be tolerated. These are important steps—they show the world you took this seriously. It is the timing and reasonableness of the response that will protect you from a legal standpoint.

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Moving Forward, More Precautions…

You should also include language to both of them that if either feels a conflict coming on, they must bring it to you and not act unprofessionally again by yelling at one another or making physical contact. (In this case, with nobody claiming to be hurt and with an unclear record, I would refer to the issue as one of “physical contact,” not as pushing or hitting—de-escalate it.)

To be frank, I’d also start looking for new people. With this level of unprofessional conduct, these steps are going to be about as effective at solving this problem as gluing wings on frogs so they can fly. But your investigation and documentation show that you took it seriously. These efforts to investigate, interact, take action, and document are about the best you can do.

Remember, this is an opportunity to improve your practice. Whoever is in charge of culture and accountability needs take on these little things and squash them before they get out of hand. It sets a standard so your best workers know what you are willing to tolerate.

Best of luck, Doctor. This a is a tough situation that requires finesse and patience. Should anything change, or if you need more guidance, please don’t hesitate to call.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace counsel about a specific issue with an attorney or HR expert. This material is meant to provide information that is believed to be current as of the date of this post.

Apr 9, 2018

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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