As an Employer, There Is What You Can Do and What You Should Do. Is There a Difference?

Feb 03, 2014   Print PDF

Related Practice: Employment

This post originally appeared on the blog Employer's Practical Advice.

On July 3, 2012, Tomas Lopez, an on-duty lifeguard, noticed a man struggling in the water south of his post when someone rushed to his stand asking for help. According to reports, the man in trouble was previously swimming in an “unprotected” stretch of the beach and about 1,500 feet south of the beach boundaries that Lopez’s employer was hired to protect. The unprotected area has signs alerting beachgoers to swim at their own risk. By the time Lopez arrived, several witnesses had pulled the man out of the water. Lopez and an off-duty nurse attended to the man until the paramedics arrived. Later that day, Lopez was fired for leaving his designated post, a violation of company rules. Lopez acknowledged breaking a rule, but said he would do it again if the situation called for it. “It was the moral thing to do,” Lopez said. “I would never pick a job over my morals.”

The company fired the employee for breaking a rule — a good practice for employers, really — but was it the right course of action? Is it what they should have done, even if they could?

Many people, particularly those who don’t employ or manage employees (and even many who do), would shout out an emphatic “NO!” “What a ridiculous, unsympathetic and callous thing to do. I mean, he was just helping somebody.” The flip side, the company side, is that Lopez subjected the Company to liability because he did leave his designated area less secure (although the Company reports that other lifeguards watched over the area while Lopez was away), and, second, it’s a rule and rules must be abided. Both points are valid. In fact, I am always advising employers that the most important rule to follow is the rule of CONSISTENCY. If you disciplined one person for breaking a rule (e.g., late five times), you should do it for everyone. Otherwise, it won’t be the ones who aren’t disciplined you will hear from, it will be the one you do, and that person will most certainly find some difference between him/her and the others who were not disciplined. Maybe there was a reasonable explanation for the difference in treatment (e.g., the others were barely late and they put out really good work, whereas she doesn’t). But, do you employer/manager want to be the one left explaining your actions, maybe months or years later to the EEOC or a jury? And, is there serious doubt that if something had happened to someone in Lopez’s area while he was away and that person was either hurt, or worse, dead that there would be a lawsuit against the Company from that person or their family? That’s a place Solomon might find himself, but not one in which the Company wants to be.

Now, of course, the Company is suffering some serious backlash for its actions — firing the hero, losing other lifeguards in protest of the Company’s actions, a lot of negative press (even the BBC news picked this up). And who knows whether Lopez might file some claim for wrongful termination on his own.

I won’t say that the Company did the “right” thing or the “wrong” thing, and I won’t comment on the validity of Lopez’s possible claim; however, I will note that some attorney might well enjoy the publicity representing Lopez might bring . . . I can tell you, I wouldn’t take the case for Lopez. The question I do pose is: did the Company do what it should have? Could they have explored lesser disciplinary options? Could they have examined more closely how they have handled such situations in the past? Could they build in some discretion in the rule, yet maintain overall consistency? What rules violations are immediately terminable — could it be that leaving your post out of neglect of your duties is it, but not leaving to help someone in need is not? Sometimes, acting with some discretion (albeit, making sure the explanation for the discretion is well-documented; sorry, I am a lawyer after all), is what the Company should do.