Tuesday, April 19, 2011

Don’t toss off common sense during workplace investigations

When a parent caught high school teacher Tom Elsass watching a group of teenage girls from the school parking lot with his fly down and his maleness exposed, which is the more likely explanation for the large wet spot on his shorts?

  • Elsass, who claimed to suffered from a leaky bladder, was vigorously rubbing his pants “inside and out” to rid his shorts of the wet spot from an embarrassing “pee stain.”


  • Elsass was masturbating.

In Elsass v. St. Marys City School District Board of Education (Ohio Ct. App. 4/18/11) [pdf], the court not bring itself to believe the former (Elsass’s amazing explanation). It not only upheld his termination, but also took away the back pay ordered by the trial court.

This case illustrates the importance of using common sense during workplace investigations. As employers, we are often forced to choose between two opposing versions of events. In doing so, we have lots of arrows in our investigatory quiver—demeanor, consistency, motive, interest, bias, candor, and accuracy of memory—each of which baring on who is telling the truth. What is often just as, if not more, important, however, is good old fashioned common sense.

No one in their right mind would believe that a grown man, caught staring at a bunch of young girls, was robustly rubbing his crotch to dry a pee stain. As an employer, you are allowed to apply your common sense in these types of situations. As long as your investigation is fair and thorough, and you base your decision on a rational business judgment, courts should not second-guess your conclusions or any adverse consequences that happen flow from them.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

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