Siberian Treatment Can Backfire on Boss

Turning up the heat on an employee could land an employer in a cold courtroom. Even though Arkansas is an employment-at-will state, where employers need no reason to fire employees, giving a worker the “Siberian treatment” can be costly.

If taking over the branch manager’s position in Death Valley doesn’t seem like a promotion, an employee’s next move could be taking the boss to court.

Although such situations are more myth than fact, there are instances where employers go to extremes in hopes of getting a particular employee to quit rather than firing them, therefore avoiding unemployment costs.

Fayetteville lawyer Shawn Daniels of the firm Kincaid Horne & Daniels said forcing someone out by drastically changing their former working conditions can have serious repercussions.

He represented a woman in Oklahoma who had her “very nice” office taken away and was promptly moved to a corner office by the company’s steam room.

“If someone were to ask me as an employer, I would sure advise them not to make a dramatic change with an employee,” Daniels said. “A lot of employers have the idea that they can turn the heat up and [the employee] will just quit. Man, that can blow up in their face.”

David Wall, a lawyer for Bassett Law Firm in Fayetteville, said “constructive discharge” is basically making an employee’s life “a living hell.”

“You can bring a lawsuit, but it’s difficult to prove,” Wall said. “Most times the employer is smart enough to put you in a legitimate position. For instance, a law firm is not going to have a lawyer in charge of cleaning toilets.”

Documenting problems with an employee is a must. But Daniels said he has seen cases where documentation has also “blown up” in an employer’s face. Wall said the personnel file must contain the right documentation.

“If the reason for all of this happening is for poor performance at work you don’t want job reviews on that [employee] that are great,” Wall said.

Daniels added that if an employee is chronically late and that was the reason for the switch in job description, the employer should err on the side of keeping good records.

Unless specified in a pre-signed contract, there is nothing prohibiting an employer from changing an employee’s job description. The problem comes when that employee turns it into a discrimination case.

If a female or minority employee has been switched to a less desirable job, the situation could become more flammable.

“Here’s why I could see where someone could say that would be discrimination,” Daniels said.

“The transfer itself is nothing technically wrong. Where you get exposed as an employer is if you make a radical change. The buzz word in a federal civil law case is ‘adverse employment action.’ If you switch someone from job one to job two and there is no real substantial difference, then an employee is required to prove in court that there was some adverse employment action against [them]. You can defend yourself on that. But when you switch say someone in management to a lower, hourly job on the line, now there is clearly adverse employment action.”

Daniels said such radical switches are not recommended, even if the firm can show legitimate financial reasoning.

Daniels said the “Siberian treatment” has not been prevalent in Northwest Arkansas, but as the workforce population continues to grow, there will likely be more cases.

“Whistle blowers” has become a buzz word in the last year as employees of Enron, Worldcom and even the Federal Bureau of Investigations laid their jobs on the line by telling of faults within their company’s walls.

Peter W. Lilienthal of The Corporate Board Journal said many employees are worried about whistle blowing resulting in “being fired or sent to the corporate equivalent of Siberia.” He noted that even United States Attorney General John Ashcroft had waffled on assurances that there would be no retaliation against FBI Agent Colleen Rowley.

Rowley told a Senate panel last June that “ever-growing bureaucracy” at the bureau’s headquarters hurt the ability of field agents to investigate terrorism.