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Friday, January 4, 2013

CONFESSIONS: Avoid Them When in Trouble at Work

EMPLOYEE'S ADMISSION OF WRONGDOING WORTH ITS WEIGHT IN GOLD

As I have learned from TV shows such as NYPD Blue and Law & Order, and as I believe to be true in real life, the toughest crimes to decipher are often "solved" by obtaining a confession from the accused. Lock the suspect down, use "carrot and stick," play "good cop, bad cop" and - Voila! - case closed.

I'm Innocent, I Swear!
We humans are very persuaded by confessions.  Confessions are very powerful tools. Confessions are hard to get around. Confessions can, for employees, be devastating.

Let me share with you two ways in which confessions come back to haunt employees.

IF YOUR EMPLOYER IS TELLING YOU IT IS DOING AN INVESTIGATION, BUT THAT YOU ARE NOT IN JEOPARDY OF BEING FIRED, BE VERY, VERY CAREFUL 

In my experience, employers that conduct investigations into an employee's alleged misbehavior often make up their minds about firing the accused employee before he/she is actually interviewed during the course of the investigation.  In such cases, the employer is looking for one thing, and one thing only.  A Confession!

Why?  Two primary reasons.

First, the employer can use an employee's admission of wrongdoing to defeat a claim of unlawful termination.  Remember, the key in such cases is often whether the employer's stated reason for terminating the employee is a pretext, a lie - or otherwise so patently unfounded that it is not worthy of credibility.  A confession of wrongdoing by an employee makes the employer's burden of proof in this regard much easier.

Second, the employer can use the confession to defeat a subsequent claim by the employee for unemployment benefits by simply establishing that the employee admitted to engaging in wrongdoing.  Click Here to read our Post on how "making a confession" in the course of applying for Unemployment Compensation benefits can lead to a denial of your claim.

COMMON TACTICS EMPLOYED BY COMPANIES TO OBTAIN CONFESSIONS

The most common tactic is convincing the employee that his/her job is not in jeopardy, and that the employee's honesty will be valued.  Implicit in this psychological strategy is the unstated suggestion that the employee will be fired if he/she is not "honest" in admitting wrongdoing, which "dishonesty" can easily be further categorized as insubordination.

THE PSYCHOLOGICAL APPROACH TO AVOIDING CONFESSION

The first thing to bear in mind, in these caustic times, is that employers who believe employees have engaged in misconduct are in many situations unforgiving and relentless.  Thus, your should be aware that you will likely not be rewarded, and you will likely not be forgiven, if you confess to wrongdoing.  This is sad, but true - not true for all employers, to be sure, but true for many.

If you are called into a meeting and asked to confess to wrongdoing, odds are you cannot win by being forthcoming (if you actually did the crime) or apologizing for something you did not do.  Odds are, many of you will read this and disagree, believing that American employers still reward loyalty, hard work and honesty.  So to those of you in this camp, I ask: When is the last time you heard about your employer, or any employer, handing out a gold watch???

Irrespective of my views, I am not suggesting that you be argumentative when asked to confess.  In fact, that is the last thing you should be.  Rather, you should simply state the facts as you understand them to exist if you did not engage in any wrongdoing, or say as little as possible if you did.  Additionally, here are some things NOT to do:

*   Do NOT write out a statement wherein you admit to responsibility.  Trust me, if they are asking you to write out a statement incriminating yourself, odds are you are dead man/woman walking.  That being the case, why write out your own death sentence? 

*   Similarly, if they have prepared a statement/report for you to sign, you may sign to acknowledge you have been shown a copy of the document, but Do NOT sign off on its accuracy. 

NOTE: Try and get a copy of anything they show you (although in the majority of cases you will be refused).

*   In fact, it is my view that you should strongly resist ever writing any kind of statement.  Remember, whatever you say can and will be used against you. 

For example, suppose the boss's favorite son has accused you of wrongdoing.  You write a statement that a) implicates the favorite son in wrongdoing; or, b) professes your innocence.  Under either scenario you may be hurting your cause because a) it is never a good idea to accuse the boss's favorite son of wrongdoing; b) denying the favorite's son's accusation against you is tantamount to calling him a liar - which will often boomerang against you because the boss will decide that, as between you and the favorite son, you are the liar.

*   Do NOT explain your actions by saying "everyone does it."  If your 10 fellow employees steal money from your employer every day, you are not "innocent" if you do the same thing - if you have violated company policy, you have violated company policy. Moreover, saying everyone else does it is seen as "blame-shifting", which is a troublesome and undesirable employee characteristic.

*   Do NOT agree to resign in lieu of termination.  Let them fire you.  That way, you will have a much better chance of obtaining unemployment benefits.

LESS IS MORE

To be clear, I am not advocating being dishonest with your employer.  If you are truly innocent, methodically state your position without being argumentative - and do not apologize for some bad thing you didn't do!  If, on the other hand, you are indeed guilty as charged, say as little as possible, hem and haw, be contrite, but do not confess!  Avoid writing statements that will (knowingly or accidentally) implicate yourself.  They can be used down the road to impede or eliminate important legal rights you would otherwise possess.

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

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