Man says he was fired for ratting out smokers
January 30, 2009 by Fred HosierPosted in: Here comes the judge, In this week's e-newsletter, Latest News & Views
An Iowa man says he was fired after confronting a co-worker who was smoking in a company break room, in violation of the state’s Smokefree Air Act.
Kevin McNeil has sued his former employer, Concrete Supply of Iowa. Besides claiming he was fired for pointing out the smoking violation, McNeil also says he suffered from racial discrimination, harassment and retaliation by his former employer.
The lawsuit claims that, 15 days after the state’s no-smoking law took effect, he confronted a co-worker smoking in the company break room. McNeil claims he told the co-worker smoking in the room was illegal and asked him to smoke outside. Then McNeil filed a complaint with the state health department, according to the Chicago Tribune.
The lawsuit claims the co-worker who was accused of smoking in the break room and a witness were interviewed. McNeil was fired three days later for allegedly “promoting violence in the workplace.”
McNeil also claims he was subjected to racial slurs and that the company did nothing after he complained several times. He cites one incident in which an employee — the same one accused of smoking in the break room — brought in a homemade toy monkey with a noose around its neck, and that he was told he should “get over it.”
The company denies all the charges.
McNeil’s attorney calls this an important public policy case that reminds employers that an employee who notes a co-worker’s illegal behavior shouldn’t be fired.
Tags: harassment, racial discrimination, ratting out, retaliation, smoking
February 6th, 2009 at 11:10 am
WOW. There are some really stupid people out there who will use ANY hot button issue to try to make a case.
Let me get this straight, an employee of a company saw a co-worker acting out of compliance with a recently implemented law (misdemeanor). He told the co-worker to comply and filed a complaint with the state. After a few days, the co-worker felt the need to tell the observing employee to “get over it.” The observing employee was fired for how they handled the situation as “promoting violence in the workplace.”
Well, the employer seemed to get this right. This person would have been terminated at my place of employment too. He was within his rights to tell his co-worker to stop breaking the law and to file a complaint with the state. Most companies have a complaint procedure that has the employee taking concerns to the supervisor or HR first. It would probably have been expected that he bring this complaint through proper channels so an effective approach course of action could be developed. The supervisor who knows their employees could de-personalize the situation and would know if there were any ongoing problems between the workers. The employer could have required anyone who lost perspective to talk to their EAP. It would appear that this employee had a driving need to be RIGHT and took matters into his own hands. I would surmise that this employee did not let it drop after the initial incident and made it a point to TELL everyone he was RIGHT escalating the potential for violence in the workplace and possibly rising to the level of verbal abuse.
You can be 95% RIGHTabout something and 100% WRONG about how you handle it. If this employee would have gone to their supervisor first and let the company handle this issue in a reasonable manner, he would probably be still employed. If he would have reported this to the company and after a reasonable amount of time the situation was not resolved, then he would have a case against the company.
February 6th, 2009 at 11:49 am
I believe the”get over it” moment was prior to the smoking incident. However, I do agree that the fired employee should have told a supervisor and let them handle the smoking situation. Nothing else should have been done unless the company did nothing. A quick way to lose your job would be to go over your bosses head, makes them look like they can’t handle their staff. I would like to see how this one ends.
February 6th, 2009 at 11:59 am
Mike R – you’ve made a lot of assumptions.
Who is right – who was wrong? How can we tell?
“Confrontation” does not necessarily mean “promoting violence in the workplace”. Neither description was fleshed out within this story. This seems to be a recurring theme on this website. We are asked to give opinions on issues and events without many facts, leading to uninformed accusations and assumptions.
To give professional, intelligent responses to these HR events we need better information.
February 6th, 2009 at 12:48 pm
Under Federal whistle-blower protection laws (applicable to Federal civil service — don’t know if or how they apply to state & local gov’ts or private companies — an agency was found guilty of whistleblower reprisal for disciplining an employee — IIRC a probationer, but can’t swear to that — for complaining about non-enforcement of an agency reg or policy prohibiting smoking indoors.
Of course that wouldn’t excuse starting a fight over it, but its not clear from the accouint gioven whether there was actually a fight or just an argument, or who actually started the violent part of it.
Also — while the account doesn’t explicitly state that the whistleblower was black, it does say the smoker brought in a toy monkey with a noose around its neck & the whistleblower complained of racial slurs. Sounds like something more serious than the smoking incident might be lurking between the lines…
February 6th, 2009 at 2:19 pm
DJ, I actually stayed with the facts as presented. The article IS extremely vague and lends itself to be “read into” with the reader’s own experience and perspective.
Actually “confrontation” can lead to violence in the workplace. It depends on how it is done.
Grandpa Mike, I agree that there are more issues here that meet the eye.
The reality is that we in HR deal with this every day. There is always an employee who feels that they are RIGHT and look to the policies, the law, and their friends to take their side. When the issue is a “hot button” issue like smoking, gender, race, etc. there may be two or more sides that feel they are RIGHT.
This was a misdemeanor law. Imagine someone complaining about a co-worker who drives company vehicles and goes 5 miles over the speed limit, who parks in a no parking zone for 5 minutes, or who jay walks outside the crosswalk marks. WRONG? Yes. a CAPITAL OFFENSE? No.
The company can only deal with what is brought to it. Employees are not perfect and can do really stupid things, like smoking in the breakroom right after a law changes or giving an inappropriate doll to send a message. As an employer, I must provide a safe workplace for my employees, so when I see employees who are provoking one another, I tell them to stop it and try to work out a way to identify and resolve the issues involved. If one continues after being told to stop, then they are asked to leave which could be employment termination.
Normally, you only need one incident in your life where a simple argument ends up in an all out fight with injuries and death. As an employer, you have to deal with the injuries (Workers Comp and insurance), damaged property, disrupted production, the media (it most certainly end up on the 6 PM news on a slow day), customers concerns, EEOC and other investigations, and police reports. And if a person dies, then OSHA gets involved.
The employer needs to set boundaries upon hire and identify clear expectations on how employees should deal with conflicts in the workplace. When it is clear that an employee is unable or unwilling to follow management’s directions and continues to provoke another employee, regardless of how RIGHT they think they are, they need to be shown the door.
February 6th, 2009 at 2:35 pm
I agree the observer should have gone through appropriate company channels with the complaint instead of straight to the state. However, the racial insult aspect is being glossed over – I mean, a monkey with a noose? That’s pretty blatant. So, the stupidity here isn’t just on the part of the over-zealous observer. The guy with the “inappropriate doll” clearly sounds bigoted to me. I also agree the article is lacking in details to help the reader determine the order of events, so the racial slurs the observer compained about seem to have been part of a pattern – possible before and/or after the smoking event. In any case, those should have been dealt with – so I certainly am interested to see the final outcome in this, too. There is, after all, legal protection both for whistleblowers (even though a misdemeanor) and against discrimination based on race, etc.
February 6th, 2009 at 3:50 pm
When I referred to the “stupidity” out there, I was referring to the lawyer who took this case, the clerk who filed it, and the media who is reporting on it.
There has been a lot of confusion over what “Whistleblower” protection is. This is probably because there are so many different laws on the books.
Bigoted behavior on the part of an employee is NOT a violation of any employment law, in and of itself. This is the same for many behaviors employees may exhibit on or off the job. In such cases, a person could sue the offender for redress in civil court. However, there is no real money in such cases, so finding a lawyer is problematic. Lawyers prefer to exploit mistakes by company management because there is a greater probability of a large settlement or judgement.
Over the last few years there has been a “movement” towards having employers be the “police” for various laws (immigration, equal opportunity, etc.). Employers, regardless of size, have been saddled with responsibilities to solve issues that the state has not been able to resolve with all its resources in 200 years. When mistakes are made, lawyers pounce on this as employer “negligence” and file suit. Many cases get settled because it is cheaper (considering the legal costs to defend) or could have serious repercussions on business if it was spun one way or another in the media. Very few cases actually go to court and far fewer are won.
To win, the plaintiff has to show that they were discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by them on behalf of their employer or others in furtherance of a legal action. So, if it can be shown that the job action was taken for other reasons (failing to follow directions of supervision concerning interactions with co-workers on the job) or that the employee was not acting on behalf of the employer or others in the furtherance of a legal action (self promotion, harassment), they will not prevail.
February 6th, 2009 at 5:52 pm
I don’t know about your state, but there is a federal law (Title VII of the Civil Rights Code) and a California law (Equal Employment Opportunity) regarding nondiscrimination in employment. I believe if an employee insults another re race, color, creed (all the protected classes – and we are all members of one or another) that is against the law. It creates a hostile work environment. I know that term generally is used in the context of sexual harassment – but I believe a person is protected by law from that kind of behavior on thepart of co-workers. One instance may not be enough to carry a case, but pervasive behavior and management does not step in – that wouldn’t be looked at kindly by a jury. The undertone I get from someof these comments is that people will think what they want (and apparently, say and do what they want) and authority can’t stop them. Maybe authority can’t make them change their ideas, but can make the this type of expression of those ideas pretty uncomfortable for the people acting like bigots. Nobody should have to tolerate this behavior in the workplace. Period.
February 9th, 2009 at 11:58 am
I agree with Judy, the behavior with the monkey is totally unacceptable, and should not be tolerated. Too often these situations are not addressed by supervisors. I also agree that the details in the article are not exactly clear regarding any violence. But the harassment is clear and should be stopped.
February 9th, 2009 at 12:49 pm
Potential here for somebody to ride out the recession, depending on how much is left after the attorney gets paid. As a number of others commented, though, the facts will determine.
February 9th, 2009 at 3:51 pm
I agree that there is a lot of boarish behavior out there. I find that both employees could have handled the situation better. However, it doesn’t look like they brought their concerns and issues to the company management.
The laws you mentioned don’t apply to the employees, but the employers. The employer needs to ensure that there is no discrimination in employment actions based on race, gender, ethnicity, religion, age, military affiliation, or disability. Beyond that, the employer needs to ensure that there is no pattern of behavior that would create a “hostile” environment for any protected group.
I find that the one employee who violated the statute and smoked in the break room wrong. I think his childish way of communicating that he wants the other employee to let it drop, by sending a monkey and noose is inappropriate. I also consider the fellow’s filing a complaint with the state health department and not going to managment just as inappropriate. He doesn’t appear to be trying to get compliance with the smoking law. He appears to be saying that he is RIGHT and he doesn’t care if the company suffers bad press, loses business, or that the other employee is demeaned and ridiculed over a small mistake that amounts to a parking ticket. Self centered individuals like this are often shunned in the work place. For him to say he was fired for his race and not because of his own boarish behavior which started this situation is an inappropriate use of the legal system.
Businesses have a business need to ensure fairness and that employees work together effectively. The codes you mention affect only a select few who are considered in a “protected class” and relates to how the employer conducts business. Some people are discriminated against every day, but they do not enjoy any government protection because the majority in our scociety disagree with their personal behavior; smokers, overweight people, gays and lesbians, etc. It wasn’t so long ago when society felt that women and African Americans had less rights than everyone else. Long before any laws were passed, businesses had to deal with these issues.
March 13th, 2009 at 5:05 pm
mike R – Your comments are not well founded. I think you might want to brush up on your “Introduction to HR” skills. You have an interesting interpretation of laws, rules and regulations as they apply to Human Resources.
March 16th, 2009 at 10:43 am
To JG:
Thanks for your vague and unsupported comment.
It made me reread my comments to try to understand your point of view. I am confused as to what interpretation you find “interesting” or what comments that are “not well founded.”
Your comment concerning brushing up on “Intro to HR” gave me the impression that you are still attending school and are still learning how to do this people business.
March 16th, 2009 at 12:50 pm
mike R- Once again your deductive reasoning ability falls well short of the mark. The number of reply’s to your comments hopefully will deter individuals from relying on your blatantly unqualified rhetoric. Most times the dialog and comments from this website are professional. Occasionally we have to read through as someone uses this forum to pontificate.
March 16th, 2009 at 2:28 pm
To JG:
Again, no specifics. So, you disagree with the fact that you need to act based on a “business need” rather than personal bias or feelings; the fact that the employer should orient its employees to expectations and set boundaries on day one (especially on how to register a complaint and how employee’s should treat one another); the fact that this was a concern over a misdemeanor offense that has balooned into a “hostile workplace” claim; the fact that recent laws have placed the employer in the position as an enforcement arm of the government for I-9’s, smoking bans, etc.; or the fact that many forms of boorish and discriminatory behavior are not covered by current law because those targeted (smokers, homosexuals, etc.) are not defined as a “protected class?”
Rather than personal attacks, I would be interested to know what you disagree with and why. Of course, if you prefer to remain vague, rely on personal attacks and use big words like “pontificate” to vent your feelings, then I will understand. I mean, I posted over a month ago, so I wonder what has gotten your dander up today.
March 16th, 2009 at 2:54 pm
Mike R: Your comment that the codes I mentioned affect “only a select few” – I disagree. We are actually all members of a protected class (or if not now, will be – ie, age.) Even though an employment action isn’t taken on the basis of discrimination, if an employer does not take action when co-workers are harassing someone in one of the “protected classes,” that can lead to a suit. The “select few” you mention makes me envision your place of employment as not very diverse. That’s probably the case in some areas of the country, but if you work near a large population base, there is diversity. Besides, even without racial or religious diversity, I would think most places have both men and women in their employ – and women make up more than half our population, and are in a protected class.
March 16th, 2009 at 3:43 pm
To Judy Buckley:
Thanks for the clarification. I apologize for my wording of “a select few.” I guess our points of view are not so far apart afterall.
The term “protected class” comes from Title VII of the federal law. This covers many groups that have been discriminated in the past based on sex, race, nationality, religion. Age, disability, and veteran status was added through other legislation. Some states have added “sexual orientation.”
My point is that there are individuals who do not “fit” the legal definition of “protected class” today and so find it difficult to escape discrimination or bias on the job (gays and lesbians, smokers, overweight individuals, economically deprived, etc.)
My second point is that the company can only respond to what it knows or should have known. It is obvious from the article that Mr. McNeil is in a protected class (otherwise the suit would have been dismissed summarily). It is not known if the other employee is in a protected class (older worker, veteran, disabled, etc.). It is pretty apparent that the other employee engaged in boorish behavior with the doll (Not unlike a recent newpaper cartoon showing the president as a monkey). It is most probable that the friction between these two employees has existed for awhile. When the employer became aware of this friction, they should have addressed their expectations for both. This may have been done, it isn’t stated. What is known is that Mr. McNeil filed a complaint with the state against a co-worker he had problems with over a misdemeanor smoking law. It is also known that the employer fired this employee three days later for “promoting violence in the workplace.” It is not known what Mr. McNeil did or said that was considered “promoting violence” but that will be for the courts to decide.
My guess is that the company addressed the behavior of these two towards each other in the past (probably following the monkey in the noose incident). I would guess that Mr. McNeil sees himself in the right and expected the company to severely punish the other employee. When that did not happen, he decided to escalate the situation to involve a state agency to punish the co-worker and the company. Now that he was terminated, he is seeking the federal government to punish the co-worker and company and to validate him.