Acme, a preeminent supplier of trimethyl flubdub to many well-known manufacturing companies, also has been hit by the current recession. In fact, production is running at only half capacity. But that’s not a big concern for Al Famaille, Acme’s president and CEO. A true believer when it comes to automation, Al championed and successfully built a plant that serves as the industry benchmark in terms of the unit labor content per pound of product. Struggling for 30 years to minimize the plant’s fixed costs and associated breakeven production levels, Al’s creation now turns a profit, even at 25% capacity.
The plant, however, still needs a few good people, but only periodically and only for a while. The resultant turnover keeps Acme’s HR director, Ruth Leslie Krewel, quite amused and quite secure in her job. Part-time goodwill ambassador and part-time executioner, Ruth maintains adequate staffing at minimum cost. For example, five years ago, Dyan Knight, the production superintendent, needed an instrument technician to verify the accuracy of the plant’s self-adjusting meters and gauges. It didn’t take Ruth very long to find Caleb Brashen, a retiree with too much time on his hands and consequently willing to work an erratic and irregular 25 hr/week schedule. Dyan was pleased with this hire because having Caleb work only two or three days a week, plus odd weekends, kept her operating costs low. It also freed up her time to do her own work, unencumbered by day-to-day trivialities in the plant.
Part of Caleb’s job required him to key instrument performance data into a maintenance software package. He quickly familiarized himself with the intricacies of the software that provides an audit trail should the FDA or a nosy customer ask for proof of Acme’s marketing claims of extraordinary product quality.
After he logged on, the software offered Caleb a choice of data files to be opened. He noticed that some of the instrument files he never used were nevertheless always updated, based on the date and time stamp the computer appended to them when they were saved. Caleb found this curious, as he was the only instrument technician at the plant. When he opened one of them, he realized it covered instruments not found in the Acme plant. After some additional nosing about, he realized that Dyan was updating the files. Then, he discovered the files covered instrumentation apparently belonging to another company. It slowly dawned on him that Dyan was freelancing and using Acme’s computer system and maintenance software to do it.
When Caleb reported his suspicions to Ruth, the only visible outcome was that Dyan started watching him like a hawk the following week and she began criticizing his work as inadequate.
Some time later, when Al was walking through the plant, Caleb stopped him and mentioned his suspicions about Dyan’s freelancing and the suddenly heightened level of scrutiny he endured ever since mentioning it. Al acted concerned and said he would look into it.
Within a week, Dyan was accusing Caleb of putting other employees in jeopardy by being drunk on the job. Caleb demanded a blood test to confirm he never consumes alcohol, but Dyan ignored his request.
One week later, Ruth called Caleb into her office and summarily fired him, the proffered reason being that he failed to do his job. One week after that, Caleb initiated a suit, claiming he was harassed and fired because he reported that Dyan was using company property to do freelance work.
An analyst's response:
Unfortunately, Caleb stuck his neck out and fell victim to the “part-time executioner.” But Caleb probably couldn’t have done anything to prevent his downfall. Given standard operating procedure at Acme, Ruth may well have hired Caleb as a “temp” employee all along, unbeknownst to him, and might have been shown the door even if he’d kept his head down. Paraphrasing the unfortunate mantra that employment lawyers must often tell potential clients: Just because it’s unfair doesn’t mean it’s illegal. As an at-will employee, Acme had considerable leeway to hire and fire, even for lousy reasons, as long as those reasons were not unlawful. More enlightened HR policies could have averted the costs of initially defending the lawsuit, regardless of whether the force of law was on his side.
How could Acme have avoided the problem? Perhaps by implementing clear computer usage policies, properly enforced, which expressly state that all computers, data and equipment are to be used for Acme purposes only, the company could have lessened the risk. In the worst-case scenario, given her side job, Dyan may have been playing fast and loose with Acme’s own instrumentation data, as well, and disclosing Acme’s intellectual property. A handbook provision expressing Acme’s commitment to consider legal remedies in such cases might serve as an even more powerful deterrent. At minimum, Dyan could be breaching her duty of loyalty, for which Acme, in theory, could assert a legal action. As happens too often, the messenger, not the wrongdoer, incurs the wrath, but Al should have taken Caleb’s suspicions more seriously for his own sake.
On the other hand, perhaps for Acme, there was no problem. Al’s benign neglect, in his view, hasn’t cut into profits. The revolving-door HR policies are having little impact on production. Caleb doesn’t have a viable legal claim, at least not yet: Acme should resist trying to fight paying Caleb’s unemployment benefits with that trumped-up “drunk on the job” claim — and avoid making such allegations to prospective employers — lest the company wants to defend a genuine defamation action, among other possible claims.