Episode 206: Employee Sleepwalked Into Termination

On this episode of What the Hell Just Happened? Paul Edwards sits down with CEDR Compliance Specialist Ally Dagnino to discuss an interesting case of an employee’s strange behavior being caused by a potential disability. This case was especially tricky HR-wise because while the employee did something that was clearly improper, it wasn’t 100% clear if she was actually responsible for her behavior. What do you do when an employee breaks the rules, but their reason for doing so could make a termination risky?

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Ally: Hey, Paul.

Paul: Hey, Ally. Tell me, what the hell just happened in HR.

Ally: All right. Today we’ve got an interesting story that came through our compliance email, which is where our compliance team gets to nerd out and see all the new state laws that are coming through and the crazy stuff that has happened in H.R.

Paul: OK.

Ally: And so this one is about disabilities. And there was a female employee who went to a sales conference with a male employee. OK. And at the conference that evening, they kind of parted ways. They weren’t hanging out or anything. She went to dinner, I believe, with another female employee. So they weren’t. There was no interaction there. OK. Later that evening, the male employee gets a knock on his door, opens it.

Ally: The female employee is standing there in a bathrobe. She walks into his room. She gets into his bed. She pulls the covers up to her face and then becomes unresponsive. And so he then has to contact.

Paul: Wait wait, wait, wait, wait.

Ally: He, I told you, is alive

Paul: When he hears a knock, he opens door. She’s standing there in a robe. She walks by him. She gets into the bed. She pulls the covers up. And at that point, she’s no longer responding.

Ally: Yeah. At that point, he’s like she’s like, not interacting with him.

Paul: So he’s like, hey.

Ally: Yeah, you. What are you doing?

Paul: You do.

Ally: It right.

Paul: And she’s unresponsive, OK? Yeah.

Ally: So. So he has to call hotel security at this point, and they wait.

Paul: He his first move was to call hotel security because he had a fellow employee in his bed who was unresponsive.

Ally: Right. Because he couldn’t get her out.

Paul: He couldn’t get her out. So she was OK. I’m I’m going to I have a lot of questions.

Ally: I knew you.

Paul: This is killing me. I have so many questions. OK, I’ll just go settle down.

Ally: He calls hotel security. They come up and they you know, shake her awake, basically, and escort her back to her room. And the article said that obviously he also mentioned told Human Resources of their company about it. It didn’t say whether he, like, contacted someone right away that evening and was like, hey, emergency situation. I feel super helpful.

Ally: Yeah. Which I doubt. Yeah.

Paul: But the hotline, right? Like the emergency hotline. It’s like a bat. It’s Batman hotline straight into the head of HRT. Exactly. And it’s like, wait a minute, we have a problem.

Ally: And we’ve got an H.R. problem. OK, right. So, you know, this employee comes back to work. They put her on a paid leave. They’re like, hey, we need to figure out what happened. And they end up terminating her. OK. So right after the incident happened, this female employee contacted a doctor about this because she was like, this was super weird.

Ally: She wasn’t able to see this doctor until after she had already been terminated. So after the termination and after she eventually sees this doctor, she’s diagnosed with this sleepwalking disorder. Oh, wow. So then she she sues the company.

Paul: Saying, hey.

Ally: Hey, you violated the A.D.A. I have a disability. You fired me because of it. Why I wanted to talk about this was because it first of all, it just shows the broad range of disabilities that you’re dealing with. And you as employers, you never really know. You never really know when you’re going to have to deal with something like this, especially a situation like this, because it’s likely that if she hadn’t gone to a conference, they were never going to be affected by this sleepwalking disorder, you know, unless she was napping at the office.

Ally: Like, it’s that’s probably not something they were ever going to deal with. Right.

Paul: So she was trying or somehow they were she her she or her attorneys did. Can I ask do you know? Because, by the way, everybody we’re talking about a story on the news as it’s reported in the news, there could be other things that went on that we’re not privy to because they’re not in the record or we haven’t found them, you know, we haven’t gone to.

Paul: So we were talking about, as it’s been reported to us. Right. OK. Do you know if she filed this with the EEOC?

Ally: I don’t know if she filed it with the EEOC. She did not win. The employer won because they stated that she was terminated because of what happened due to her disorder. Not the disability itself.

Paul: Not the disability.

Ally: Itself. Right. Right.

Paul: And the employer at the time had no way of knowing that she had a disability Correct?

Ally: Yeah.

Paul: There’s no way to know because she didn’t know.

Ally: She. Yeah. Yeah. You know, and I don’t know if it had this was like the very first time it happened to her or she just hadn’t seen a doctor about it before or anything like that. But yeah, in any case, it wasn’t something that had ever been disclosed to the employee, a doctor. But, you know, the reason why I thought this was interesting is because it kind of shows that even when an employee has a disability, that doesn’t mean that the employer is required to just let anything fly, you know, in this case.

Ally: Yes. Unfortunately, her disability is what caused that to happen. But it’s still violated. Well, you know, another employees privacy and boundaries and any rules that they had at the company about.

Paul: Do you know that they were traveling overnight or if it was locally, if she wouldn’t if statehood.

Ally: Yeah, they were in a hotel, so they had to. But I don’t know if it was out of state, but it was out of whatever whatever city they’re facing.

Paul: OK, so I have so many things to unpack here. Yeah, let’s do that. The reason why I asked about the EEOC and whether or not she had filed this ADA complaint through the EEOC for everyone’s benefit out there, if you’re filing a complaint underneath either the federal or the or the federal American with Disabilities Act or with maybe your state, your state may have a disabilities act of its own, you do you generally have to go through the EEOC at the federal level.

Paul: So you’d have to have 15 or more employees, and I’m assuming they did, or you go through your state if there’s if that’s the path that you’re supposed to take, and then they do something and I think some of you if you’re in H.R., you’ve heard this, it’s called a Right to Sue letter. And I just want to be clear the way I thought about it when I first learned about this, like 15 years ago as I thought that the EEOC would make a determination and tell you whether or not, as the complaint, the person is going to lodge the complaint, whether or not you could sue the employer.

Paul: That’s not actually how it works. The EEOC looks at the complaint and decides if they’re going to represent you or not. They’ll say, look, you can you can go private with this and sue on your own. But we’re interested in this. We think it’s a case. We think it’s a big enough case, and it’ll have a big enough impact that we want to represent you and we want to go after the employer.

Paul: So that’s kind of an interesting thing to know. But regardless of whether they decide to pursue it themselves or not, they still issue a right to sue letter. So the right to sue letter is really to me. As I understand it, it’s more of an acknowledgment that this has gone through the EEOC and a right to sue letter without the EEOC taking action can it can be an indicator that it may not be the best it may not be the best case to go on.

Paul: Right. So that’s that’s one piece that’s just one piece of let’s nerd out and kind of talk about what it means when someone files this kind of complaint.

Ally: Yeah. No, that’s a really important detail to share, I think from this know what steps employees may go through. And exactly like you said, what that letter that gives it some validity.

Paul: It gives them. Yeah, it gives them the I think I think it’s probably as much for the courts to be able to say, OK, we can receive this as this kind of complaint. It has gone through its administrative thing. They tried to settle it. They tried to work it out beforehand. It can’t be it hasn’t been able to be worked out between the parties.

Paul: And, you know, they’ll they’ll let the case proceed. All right. All right. That I just had. OK, all right. I mean, you made a good point. Something to take into account I think a lot of employers think if there’s a protected class or if someone’s disabled, they have to do they have to be incredibly cautious and they almost can’t do anything.

Ally: Mm hmm.

Paul: To hold some accountability around the around the job So I think one of the misunderstandings that employers have and it’s not a it’s not it maybe misunderstanding is not the right word. Let let me just say it. A lot of employers think if somebody is disabled or if they’re in some kind of a protected class, which almost all of us are in anyway, that their hands are tied that they have to walk on eggshells almost to the point that they can’t hold someone accountable around the job that they’re supposed to do.

Paul: And that’s not true. Now, you have to be careful. You have to be cognizant of it. You have to have the policies and the expertise in order to be able to understand what you’re getting yourself into and how it has to be specifically handled.

Ally: Yeah, I’m really happy that you just mentioned about how important it is to have those h.r. Policies and expertize before you address these situations. Right. Because, you know, as you said, a lot of employers sometimes think that they can’t do anything because this person, as you said, is is has a disability. And on the opposite end of that, sometimes they don’t take the disability seriously.

Ally: You know, and so we talked a little bit about this in one of our previous episodes where the employee had a really severe anxiety. The employer threw him that birthday party and ended up having to pay like almost half a million dollars. Right. In fees for his wrongful termination. And so it shows the kind of two polar ends of that spectrum.

Paul: It really does because in the in the one I think it was episode three, we did. And, you know, again, it was as it was reported in the news, what it looked like was that the company knew that they had they had it was reasonable for them to know that what the employee was telling them about their anxiety and not wanting that birthday party would qualify underneath some kind of disability and that you know, it just looked that way.

Paul: On this one, though, as you described it, it looks like they can’t know because the employee didn’t even know. And you know, work related works in two different ways, by the way. You know, work related means that work has to take some accountability for what went on. So if the shoe had been on the opposite foot and it had been him who showed up and and walked into her room and got into her bed, there’s almost no amount of getting you know, getting out of that.

Paul: And so her coming like she did with nobody having any knowledge that she had some issue with there being no indication to the employer or even maybe to the guy that it happened to who worked for him, that there was a disability, then they can’t know. So they they couldn’t fire for that. The other thing I want to point out, Ally, because we don’t have to drive this into the ground, is we we work in a business where there’s lots of conferences and traveling.

Paul: And one of the important things to note is, is that our policies, these employees at this employee handbook, these policies apply all the way across the board. Like when you’re traveling, you know, when you’re in the plane, you still can’t get knocked down drunk drinking, you know, because you’re you’re traveling for work. You still have to conduct yourself as if you’re at work.

Paul: And so that comes that comes into play to a certain degree here, even though I think, you know, you could argue it’s the middle of the night and she’s she wasn’t on the clock in any way, shape or form. It’s still I don’t know what else they would have done. So what you’re telling me is she filed a complaint.

Paul: They sued company thought the lawsuit company won.

Ally: Company.

Paul: One just wasn’t related. I mean, they they they had to have had a very difficult time attaching the action that the employer took, which I think was in line with their core values, with their policies and what any of us would do with what they knew at the time. I think the action they took was aligned, was consistent.

Paul: It’s probably what they would have done in all circumstances. And there was no way to prove that they you know, because she had a disability they targeted her and decided to do it. In fact, I think I mean, I can’t speak for him, but I would I can’t imagine that if she had immediately said, hey, guys, I have a sleepwalking disability, I never thought to tell you because I don’t sleep at work and it’s not any of your business, but I’ve been diagnosed with this.

Paul: It’s been it happens throughout my life. It comes up and down. It’s because of reasons I don’t want to share with you. The company would have been smart to take a step back.

Ally: Yeah, I think it would have been a different conversation at that point. They would have taken different steps to address.

Paul: I would certainly expect. Absolutely. Yeah. So that’s a really interesting that’s a really interesting thing.

Ally: Yeah. I thought it was just a good one to show, you know, how important it is to have those policies in place. And how beneficial it can be to having, you know, an H.R. expert to talk to you. Because this is the kind of stuff that when it comes to resolution center, we can really advise on all those specific steps that you need to take whichever way the situation comes.

Paul: This one would have been something we could have handled quite. I think we would have handled quite well and we would have agreed with them taking the steps they that they took. Based on what I know right now, there’s one other thing I want to put forward is I hope there was a policy in place and I think there was that told employees that if they felt harassed or something was wrong, they needed to report it.

Paul: And although I made a joke about the H.R. hotline, I think the employee, the guy did the right thing. He reported it as soon as possible and made H.R. aware of it, which I think was just, you know, everybody did everything right in this case, which is not how it always turns out.

Ally: Yeah. The bases were covered, I think, for the most part.

Paul: Well, Ally, that was really a good one.

Ally: Things like that. Yeah, of course.

Paul: That was what the hell just happened in HR.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Nov 29, 2022

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 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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