Evidence 202
Evidence 202
Civil Liability
Employee Discipline
By Jim Goding
One of the more important things we deal with in Surveillance and in Security internal investigations is the results of finding various forms of employee misconduct, from minor procedural infractions to internal theft and the various forms of embezzlement.
As a contrast, it can also be one of the most frustrating things we must handle. The frustration generally is at least in part our own responsibility, from having done either incomplete investigations (insufficient evidence, incomplete evidence) or incomplete documentation.
On top of this, it will often be felt that some parts of the company seem to be working against effective handling of employee situations.
The fact of the matter, though, is that incomplete investigations or incomplete documentation are the actual enemies to be handled. These are something that is within our control and within our own area of responsibility.
We are going to explore this area in depth in this article, from a number of differing viewpoints.
Human Resources
The Human Resources Department (under whatever name) has, among its other functions, the unenviable job of acting as the devil’s advocate for employees who have been found committing various forms of misconduct. This can make HR a hated enemy, if one has no understanding of the reason for this function.
In actual fact, their function in this regard is to safeguard the company’s assets. Does that sound familiar? It means they are actually on our own team.
By ensuring that investigations have been made impartially and that all evidence of misconduct is completely and competently documented, Human Resources is protecting the company from unnecessary lawsuits due to employees claiming they were harassed or wrongfully terminated or disciplined.
In actual fact, what HR needs for the termination of an employee is very similar, and in some ways even more extensive, than what is needed for a successful prosecution for criminal activity.
Even in states where the employer has the right to fire an employee at will, a terminated employee can still sue for wrongful termination, should the reason for it be incompletely documented, or the employee be able to claim that he or she was in some way singled out and treated more severely than others, or that special circumstances (such as physical handicap or medical condition) were not taken into account.
Needless to say, this can prove very expensive for an employer. It can even result in employees with criminal tendencies being reinstated, with even more difficulties imposed on future actions. Once reinstated, any actions taken against such a person–including legitimate investigations–can be made to look in court as retaliation for the lawsuit or harassment.
Here is what is required by Human Resources for termination of an employee for misconduct:
- Complete records of the current investigation
- Original reason for the investigation: employee tip, shortages in the area, procedural violations or other reasons for suspicion of misconduct
- Record of observations, including video evidence and supporting documentary evidence if applicable
- Full reports, documenting time, place, personnel and event, of violations of law and company policy or procedure, including what specific policies were violated
- Evidence that the employee knew they were violating company policy and procedures (or simply not doing their job), such as a record of experience with the company, evidence that the employee had read the policy and procedures, training records, etc.
- Records of any earlier investigations into this employee, such as Incident Reports, procedural violations, etc., including notifications to seniors and what corrective actions were taken
- Records of earlier discipline of the employee for similar violations.
The HR representative assigned to the case may be working from a checklist. If such a checklist exists, Surveillance or Security Investigations should also be working from the same checklist. If none exists, it should be created by the Human Resources department and checked by the company legal department so that everyone is working from the same information.
The entire evolution of terminating an employee for cause requires teamwork between Surveillance and/or Security, the department concerned, and Human Resources. Each has its own role to play. Termination for cause, unless actual criminal activity is involved, is a progression of disciplinary action.
Let’s start with the department under observation. As in many prior instances, I will use the Pit for an example, as this is one of the easier areas to illustrate. Please remember that this information also applies to other areas, such as Slots and the Cage, Food & Beverage (bars and restaurants), other points of sale, and all other areas of the hotel-casino complex, right down to purchasing, receiving, and marketing.
Some of the things written here may have to be modified. For instance, many areas have a centralized area for all employee files, so that individual departments keep no files on the department staff. In such a case, communication systems must be very efficient and secure, and the filing in Human Resources must be accurate and up-to-date at all times.
Department Requirements
When a staff member is added to a department, a file should be started immediately, containing a copy of the person’s application information and hiring papers. It should contain a copy as well of the person’s Social Security card, immigration card if applicable, gaming license if applicable, and any other information required for hiring for the position he or she is in.
Certain parts of this have to be kept updated: address and contact information, gaming licenses, etc.
At the beginning of the file is a log which lists all significant changes and personnel information: issuance of manuals, training passed, outside training, probationary periods completed, promotions, raises, significant accomplishments, awards, and current pay rate.
A second log includes attendance information such as call-outs, vacations taken, etc.
A third log is for any form of disciplinary action. Even a verbal warning gets listed in this log, and it should also include re-training actions when the person has been corrected for an error. Every single disciplinary action or violation of company policy and procedure gets listed on this log.
When a senior receives a report on an individual, the report gets added to the file, and the corrective action taken gets logged. Personnel action forms, or their equivalent, are added to the file, attached to any reports connected to them.
It is very important that when an individual has been investigated, for any reason, that the final report is added to this file. It is especially true that investigations showing negative results (the person was not in violation) are included, as well as positive results and their attendant corrective actions.
This file is a history of the person’s employment. It should in fact be duplicated in Human Resources, so far as all significant actions are concerned. However, within the department actions are often taken, such as simple verbal corrections, which are not considered sufficiently serious to report to HR. These actions must still be at least logged as entries in the file. This is the basis for the record of progressive discipline that must be shown in terminations for cause, when a person’s violation is not criminal activity.
Without this file, especially in large organizations, seniors will find it very difficult to keep track of who the real problem children are. It is also especially important to keep these files when a department has a relatively high turnover rate, with people getting promoted out the top, transferred to other areas, etc.
The file itself serves as a guide for the next level of discipline, gives a very good overview of the person’s history with the company for considerations of promotions and pay raises, and can provide damning information when a person gets caught in serious violations.
If a staffer gets transferred to another department, the file either goes with him to his new area, or it gets sent to Human Resources and filed with his base file there. I prefer this alternative personally, as a person in a new job should start clean, and often keeping his history with him prevents this. However, the file should be seen by prospective new seniors before approval of transfer.
When a new senior takes over in his department, he should become familiar with the files of all his juniors, but he has a choice of whether to allow all personnel to start fresh.
I have seen a very successful turnover of a troubled department, where the new director coming in gave everyone in the department a chance to start fresh. The down side of this was that they all began with a probationary period, just like a new hire. Part of the reason he did this was that the files on department personnel were poorly done, uninformative, and possibly had been compromised. It is one of the liabilities of taking over a department that has been unproductive or in which the senior departed under a cloud, which may or may not have covered one or more of the other staff in the area.
Here is the example: A new dealer gets hired for the Pit. He deals blackjack, craps, roulette and Pai Gow Poker, as well as a couple carnival games. His file contains an application showing several years of experience as a dealer in two other clubs, both apparently upward career moves. It has his home phone and all other information, including a copy of his state gaming permit.
The person passes probation with only a couple of minor verbal corrections, both logged in the file as instructional corrections in house procedures.
All goes well for this employee for several months. Then he is noted by Surveillance correcting an error he made on roulette, without notifying his supervisor. Surveillance notifies the Pit Manager and the dealer is verbally warned when he comes out on his next break.
This verbal warning is entered in his file on the correction and discipline log.
A week later, a floor boss notes that he cannot read the dealer’s card spread on Pai Gow Poker. He is corrected in place on the table, and the floor supervisor mentions it to the Pit Manager, who logs it in the file.
Two weeks later, Surveillance finds that this dealer is apparently flashing the hole card on blackjack as he checks the card in the prism. As no one at the table is apparently taking advantage of the fact, again a Pit Manager is notified and the dealer is given a written warning, as this is the third serious procedural violation. The written warning is logged in the file and a copy sent to Human Resources.
The dealer calls in sick three separate times in two weeks, and is found to be inattentive at work. Errors are made on the games.
Surveillance, requested to watch the dealer because of the errors and lack of attention to the games, observes again on Pai Gow Poker that the dealer’s card spread is unreadable. As there are three earlier procedural corrections on this supposedly experienced dealer, a close watch is initiated. It is found that the dealer has been pushing losing hands on Pai Gow Poker, and collecting an unusual amount of tips.
Local Gaming enforcement agents state there is insufficient evidence to show that the dealer is actively cheating. It could be defended as errors.
The results of the observation are reported in detail to the Table Games Director, who decides that since the person is normally a skilled dealer, he will not terminate at this time. The dealer is suspended for serious procedural violations. The report on the close watch is entered in his file and the suspension logged. All proper paperwork is filed.
Three weeks after returning to work, another dealer notices this person passing checks off to a casino guest outside the pit, and reports it to his senior. A Surveillance review finds that the dealer pocketed his tokes instead of dropping them into the toke drop box.
A report is filed and it is decided by the table games management that the casino no longer wants this person’s services. It is now possible, because of the record that was maintained of earlier corrections and procedural violations, including the verbal warnings, written warnings and suspension, to immediately terminate. The table games department file, including the earlier Surveillance reports and the log of the person’s disciplinary actions, is sent to Human Resources. When the person next reports for his shift, he is suspended pending investigation. Human resources contacts him and tells him to collect his final pay and turn in his uniform.
There is one thing further to note here. Two of the above instances actually involved criminal activity. However, in the first instance because of insufficient proof, and in the second because it was small-time petty theft, law enforcement had insufficient cause to take the case. The dealer could not be fired for cheating or theft, as no case was taken by law enforcement. But there was still sufficient material in the files and records to handle a termination.
Human Resources Files
As you can see above, Human Resources in this case had lots of material available. Many cases where Surveillance, Security Investigations and department heads find serious, fire-for-cause violations are nowhere near this cut and dried.
It is very common, unfortunately, for department heads to keep poor records of employee discipline, forget to forward the HR copy for filing in HR’s central employee files, or even continue verbal warnings and corrections far beyond the point where more serious discipline should be occurring.
A major reason for this, in the department, is that no records are kept, or records are kept poorly. Thus a shift manager who has just been promoted up doesn’t know that a specific dealer has already been corrected a dozen times for a violation, such as correcting his own errors, that can mask cheating or theft. The dealer continues, uncorrected, believing he can get away with anything, and eventually moves on to outright cheating.
This is why Human Resources is supposed to receive a copy of the form used when more serious disciplinary actions are taken, such as written warnings or suspensions. The form gets filed in HR, and the person notes that this is a second written warning for the same offense, when in fact it should be a suspension or in severe cases a termination.
Progressive discipline is ensured in this way. And progressive discipline is what HR must ensure is occurring.
Thus, forwarding a copy of a disciplinary action form to HR is the second most important part of any disciplinary action. Without it, Human Resources cannot see what is occurring, and cannot maintain its own records, cannot advise department heads, and cannot prove, when it comes down to the wire, that a staff member has been correctly trained and disciplined for errors and misconduct. When copies of disciplinary actions are not forwarded to Human Resources, they must rely on (probably poorly kept) records maintained in the department.
Surveillance Records
Surveillance has the task of maintaining evidence, not only of criminal activity, but in any case where civil actions might be filed against the company. This most definitely includes personnel disciplinary actions.
Surveillance reports are now filed normally electronically. A database exists by which a person’s name may be searched, or a particular type of offense, observation or error.
However, even in cases where the electronic filing is not up to this speed, hard copies are kept of all reports, and files are maintained of evidence tapes.
Two types of files should be maintained. The first is a chronological record of all reports. This would also include a second file of all daily logs, so that if necessary, even the more minor violations could be researched.
The second would be a file containing persons upon whom Surveillance had made reports. These would be filed by name, and would contain the reports and notations of where the taped evidence of their violations are filed. The reports would also contain notes regarding the final outcome (verbal correction, verbal or written warnings, suspensions, termination, arrest).
Thus, when a serious violation occurs, and the case is turned over to Human Resources, copies of all earlier reports can be sent to show that progressive discipline had occurred, the basis of the current and any earlier investigations, and all of the information needed to show that investigations had been done without prejudice and that corrections had been made per company policy.
The files of reports and evidence are also available for the legal department should the casino be sued. The reports and video evidence will go a long way toward squashing attempts by disgruntled former employees to be reinstated, or to “make the casino pay” for alleged wrongs, and will at the very least stop claims that evidence was destroyed.
The taped evidence would be made available in case of need, so that if necessary, a civil court could be shown the record of violations and corrections, thus ensuring that the terminated employee had been treated fairly, disciplined in a progressive manner and not targeted unfairly.
Of course, in many cases, the taped records of transgressions will exist only as dubbed copies made from originally tapes, or even as sections of a composite tape of various violations by all personnel in an area. However, for a civil action, these are normally sufficient, so long as the record actually exists and can be located.
The system for filing and locating such taped records varies greatly from casino to casino. The system itself does not matter, so long as taped evidence can readily be located in case of need, and that copies can be made for civil courts as called for.
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