Q: Three weeks ago I told my boss, our company's operations manager, that I'd accidentally learned my co-worker was accessing porn. He said he'd take care of it.
This morning, the human resources manager summoned me to his office and let me know I just wasn't working out and so they were "inviting me" to resign today. I asked for the reason and was told I didn't fit in with the team.
I asked for specifics and wasn't given any. The HR manager simply told me the decision was made and I would receive one month's additional pay and a good reference if I'd sign a severance agreement.
I asked to be able to think it over. I was told I had 21 days.
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Here's the deal. I learned from my boss's secretary that he also takes porn breaks. Given what's going on here, can I fight this?
A: You can fight -- if you have the right ammunition.
Washington courts expect employers to observe the covenant of good faith and fair dealing. While employers can fire at-will employees for any reason or no reason, they can't fire employees for a "bad" reason, including violations of law and public policy.
Although an employer who fires an employee for protesting porn may violate the covenant because he wouldn't be acting fairly, proving it may be difficult. You have some strong circumstantial evidence in terms of your supervisor's alleged misconduct and the fact that you've been invited to resign so quickly after you commented about porn.
What evidence can you produce to document what you saw on your co-worker's computer? Will the secretary come forward concerning what she saw? What evidence might your company produce that shows that you're not working out as a new hire -- that has nothing to do with your commenting on the porn? Can you win this fight -- or might you risk losing a month of pay and a good reference letter by engaging in a fight you can't win?
Before you launch your fight, you also need to decide what you want to win. Do you want your job back in a company in which managers view porn? Or would victory mean negotiating a larger severance and finding a less problematic boss? If the latter, present a counter offer -- after you've seen an attorney who can advise you on what to say and not to say.
Meanwhile, your company can't afford to ignore porn in the workplace. If they do so, they risk additional turnover, productivity and morale problems and legal liability in the form of an offensive, sexually hostile work environment. Not only does the porn itself create problems, but those who download it desensitize themselves in ways that may lead them to violate other workplace boundaries.
Further, the court in the landmark Doe v. XYZ Corp lawsuit held that employers who fail to take appropriate action when learning employees use company computers to access porn may be liable to nonemployees injured by the misconduct. In that case, the employee's wife sued and won.
Finally, the 2010 Nielson study documents that 21 million Americans, or 29 percent, of working adults admit accessing adult websites on work computers. Seventy percent of all online porn access occurs between 9 a.m. and 5 p.m., and this improper end-user online behavior often leads to the company's domain name appearing when the user connects online. Companies that want to avoid liability can use software that identifies and blocks inappropriate or sexually explicit websites.
Can you fight? Yes. Should you? Do you have the ammunition you need, and what do you hope to win?
-- Lynne Curry is a management trainer, consultant and president of Alaska's The Growth Company Inc. in Anchorage. Email her at email@example.com.