Two case studies outlining employers' risks and responsibilities when dealing with the "nightmare employee."

1. Dealing With
The Nightmare Employee:
Two Case Studies
Kelly Schoening, Esq. Kevin F. Hoskins, Esq.
kschoening@dbllaw.com khoskins@dbllaw.com
513-357-5284 513-639-7671
Dressman Benzinger LaVelle psc

2. Social Media Nightmare
Case Study from Youtube
Look at employee’s side of the story and
determine where company went wrong.

3. Her side of the story:

36. What Legal Issues Does Jenny Raise?
1.Sexual Harassment
2.Social Media
3.Internet Use
4.NLRA

37. What Can the Employer Do?
 Can Spencer stop her?
 Can he demand that YouTube take this down?
 Does Spencer seem to be in trouble?

38. Spencer’s side of the story:

74. What Problems is Jenny Facing?
 Violation of non-compete? (injunction, attorney
fees)
 Violation of non-disparagement?
 Violation of social media policy?
 Contract changes everything.
 Jenny needs to remove the video link.

75. Where Company Still Went Wrong
 Responding to her via YouTube may not be
smartest move.
 Called her names and was degrading.
 Should have handled it outside of YouTube.
 Harder now to have YouTube remove her post.

76. Social Media Policy
 Have a policy.
 Keep it current-law changes fast.
 Can prohibit posting that is harassing, abusive,
vulgar, or threatening.
 Cannot prohibit employee from saying “bad”
things about the company.

77. Social Media Policies
 The National Labor Relations Act applies to all
employers.
 Employees have a legal right to express
workplace concerns.

78. Second Case Study - FACTS
 10 year employee – good evaluations and raises each
year.
 New manager one year ago.
 Not performing well per new manager.
 Counseling and performance improvement plan.
 Prior to next counseling employee meets with manager’s
boss and:
 alleges hostile work environment
 submits FMLA paperwork due to job related stress
 alleges improper billing by new manager
 complains of answering emails at home and not being paid

79. Legal Issues
 Harassment
 Discrimination
 FMLA
 ADA
 Whistleblower
 Retaliation

80. What Should HR Do?
Toxic Employee is Setting Up the Company
 Obtain written complaint.
 Detail: who, when, what.
 Management must address the issues.
 Investigate and take notes (facts only)
 Failure to address the issue makes it hard to defend
 Follow-up with employee 2-4 weeks later.
 Have you trained managers and supervisors to
recognize the warning signs? (This is usually where the
ball gets dropped.)
 Ignoring the complaint is not an option.

81. FMLA
 Grant leave if paperwork has been completed.
 Really is no choice.
 Be sure you are in compliance with FMLA
regulations.
 Send appropriate notices.
 Job protected leave.

82. FLSA
 Answering emails on “own” time is compensable
working time.
 Hourly employees should not answer emails or
calls unless being paid.
 Recent case out of Illinois with police officers
awarded pay for answering e-mails on “non-
work” time.

83. Job Performance
 Review Supervisor’s notes – is PIP justified?
 Focus on job requirements.
 Toxic employees must still perform.
 Identify hidden messages from employee.
 Separate this from harassment issues.
 Avoid premature adverse action.
 Is employee being treated the same as other
employees?
 Give employee time to improve-it must “look” fair.

84. Retaliation
 Biggest risk for company.
 Employees should be reminded not to retaliate.
 Coach/train supervisors.
 Do not share complaints with anyone who does
not have a need to know.

85. Risk Assessment
 Everything you say and write can be used against you.
 Be mindful of tape recorders.
 Identify decision–makers.
 Identify potential comparators.
 Review all documentation.
 Review emails and texts.
 Tell employee the true reasons for counseling and/or
termination. Juries do not like deceit or “unfairness”.

86. Some Good Employee Quotes
Advice for Management
 Never give me work in the morning. Always wait until 4:00pm and then
bring it to me. The challenge of a deadline is refreshing.
 If it's really a "rush job", run in and interrupt me every 10 minutes to inquire
how it's going. That helps.
 Or even better, hover behind me, advising me at every keystroke.
 Always leave without telling anyone where you're going. It gives me a
chance to be creative when someone asks where you are.
 Wait until my yearly review and THEN tell me what my goals SHOULD have
been. Give me a mediocre performance rating with a cost of living increase.
I'm not here for the money anyway.
 If you give me more than one job to do, don't tell me which is the priority. I
like being a psychic.

87. Some Good Employee Quotes
Advice for Management
 Do your best to keep me late. I adore this office and really have nowhere to go or
anything to do. I have no life beyond work.
 If a job I do pleases you, keep it a secret. If that gets out, it could mean a promotion.
 If you don't like my work, tell everyone. I like my name to be popular in
conversations. I was born to be whipped.
 If you have special instructions for a job, don't write them down. In fact, save them
until the job is almost done. No use confusing me with useful information.
 Never introduce me to the people you're with. I have no right to know anything. In
the corporate food chain, I am plankton. When you refer to them later, my shrewd
deductions will identify them.
 Tell me all your little problems. No one else has any and it's nice to know someone is
less fortunate. I especially like the story about having to pay so much taxes on the
bonus check you received for being such a good manager.

88. THANK YOU!