The Shirley Sherrod Mess

There are many lessons to be learned from the Shirley Sherrod mess. Among these might be that we are indeed a "nation of cowards" when it comes to talking about race, as Attorney General Holder has said; that the right-wing bloggers have become even more hateful and despicable than ever, in posting an edited video which purports to show just the opposite of what Ms. Sherrod was actually saying; that FOX news is even more despicable than we thought, in disseminating the false video and calling for Ms. Sherrod's resignation or firing; that this then piggbybacks to the Obama administration and the NAACP in jumping on this phony bandwagon and castigating her, when the facts were easily ascertainable and showed just the opposite--that she was describing how it is poor people who need help, not just Blacks.

But, having just watched the Secretary of Agriculture two hours ago giving an abject apology for firing her without learning all the facts, I have to comment on this aspect of it, since I have special expertise here by virtue of doing literally hundreds of unemployment compensation hearings in my law practice. The issue in these hearings was always why the "separation from employment" occurred. That is, if it was a discharge, why was the emploiee discharged; if it was a quit, why did the employee quit. In the instance of a discharge, as we have here (quitting under threat of being fired is the same legally as a discharge), the issue was always, why was the employee fired? If because of misconduct connected with the work, then the employee does not get the benefits, and the employers account does not get charged.

I have seen many instances of employers messing up in the way a discharge is handled, as the Ag Sec did here. The one which sticks in my mind is that a nursing supervisor in a care home heard that a nurse's aide had slammed the door to a resident's room and left in anger, which is considered resident abuse and clearly misconduct. What the suprevisor did is call the aide into her office, and as she entered simply said, "You're outta here."

Well, at the hearing the aide denied slamming the door and presented a completely different picture of things. The employer witness who was there did not even back up the version which had reached the supervisor. The coup de grace for the employer's case was that the door had the standard gadget on it preventing it from being slammed, so it was not even possible it happened as reported.

The lessen here is that an employer should never act precipitously, as the Ag sec did. It costs nothing to first get the facts, deliberate on them, and then act. In my case, the supervisor should have asked the aide what happend and gotten her version of events. If the two versions differed, then other witnesses could be talked to and a proper investigation undertaken before any firing decision was made.

The larger lessen here is the proper relationship between an employer and employee. There has been, since the '60's, a lot of management training info about communication being a two-way street, about open-door policies by employers, about "theory X vs. theory Y", and so on. A lot of this has been talk and not much else. When I started at a law firm my boss said if I ever had a problem just come talk to him, his door was always open and he would help. When I did seek his help some months into my tenure, he said he didn't have time to deal with it and I should carry on the best I could. So much for the "open door policy". I think in many cases the open door policy is not a reality.

But I think the best approach goes further than just an open-door policy. The best employer develops a solid relationship with employees, in other words, is proactive in taking steps to develop a rapport. I think of Attorsney-General Robert F. Kennedy, who would pop into offices in the Justice Department and ask the person what he/she was working on. This sort of taking an interest in your people can't help but lead to an important rapport. And if you have this sort of rapport, how would you ever fire them based on some hearsay account of something they supposedly did? It would be inconceivable. Of course you would immediately get with your person and discuss it, ask for their version. The Ag Sec did not do this, to his eternal discredit, but he has acknowledged his mistake and I think he will be allowed to move on with the important business of his department.