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Member’s Remarks about a Former Employee Cause Trouble

Jun 1, 2018


Situation

An engineer employed in a large West Coast engineering firm approaches several of his colleagues with concerns over the firm's managerial practices. Chief among his grievances is the belief that the firm's management is increasingly channeling work to offshore outsourcing companies, a practice he feels is creating a downward trend on salaries for the firm's engineering staff and contributing to the overall commoditization of the profession. He further opines that the staff has been victimized by what he feels is an inequitable distribution of the firm's revenues (i.e., increases in the company's net worth have not been followed by commensurate increases in staff salaries and other benefits).

The engineer has prepared a letter outlining these issues for submission to the firm's top management, and his goal in speaking to his colleagues is to identify others who might be willing to cosign the letter. Yet while the engineer is still engaged in enlisting colleagues in his plan, he is unexpectedly called in to his supervisor's office. The supervisor identifies several areas of deficiency in the engineer's performance and states that as a result of these concerns, the engineer's employment is being terminated, effective immediately.

The engineer believes that the grounds for his termination were not legitimate and that in fact he was fired because of his efforts to coordinate the group letter. He files a complaint with the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act. This law provides a variety of protections for employees seeking to improve their employment conditions through labor unions or other forms of "concerted activity," and the employee alleges that his termination was an unlawful retaliation for engaging in this protected activity.

While this administrative action is pending, the engineer begins searching for new employment. He interviews at a firm with several open positions and believes he will receive an offer of employment, but despite initial signs of interest from the interviewer, a job offer fails to materialize. This first unsuccessful application is followed by numerous others, and the engineer is ultimately able to find work only after relocating to another city.

Soon after he starts a new job at his new location, the engineer's new employer tells him a colleague had given him a warning about the engineer. According to the employer, this colleague--the interviewer from the first firm at which the engineer had applied--claimed his staffers had checked the engineer's references during the application process and that the engineer's former supervisor had told them the engineer was a "troublemaker," whose frequent complaints and bad attitude had been detrimental to staff morale.

While the new employer seems unconcerned with this report, the engineer is incensed to learn of the supervisor's comments and their apparent impact on his earlier attempts to find work. The former supervisor is a member of ASCE, so the engineer files a complaint with ASCE's Committee on Professional Conduct (CPC).


Question

Did the member's remarks to the interviewing employer violate the ASCE Code of Ethics?

Discussion

The duties that exist between an engineering employer and employee upon termination of the employment relationship represent perhaps one of the most nebulous topics of professional ethics. While Fundamental Canon 4 of the ASCE Code of Ethics requires engineers to act as "faithful agents or trustees" to their employers, it is less clear whether any portion of this obligation lingers past the employee's final day of work. Similarly, while Canon 7 requires an employer to "uphold the principle of mutually satisfying relationships between employers and employees," this canon is silent on the issue of whether this entails any commitments following the employee's departure.

To pinpoint the existence of any continued ethical obligations, it may be illustrative to note that legal and ethical challenges most commonly occur in this situation when the former employer and employee become rivals in the competitive marketplace. Fundamental Canon 5 of the ASCE Code states, "Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others," and guideline g adds, "Engineers shall not maliciously or falsely, directly or indirectly, injure the professional reputation, prospects, practice or employment of another engineer or indiscriminately criticize another's work."

While these obligations apply equally to any competitors in the market for engineering services, it may be argued that the capacity for harm is greater among competitors who once shared an employment relationship or similarly close affiliation. False claims about an employer's business activities may seem more credible when voiced by a former employee, who is presumed to have personal knowledge of the employer's inner workings. And spiteful or malicious criticism of an employee, when made by a former employer who is expected to have a greater familiarity with the employee's conduct or qualifications, may be ruinous for that employee's prospects. Given this perceived credibility of impressions gleaned from an employer-employee relationship and the continuing obligations of good faith implied in Canons 4 and 7, it is likely any individual found to have launched misleading or unfair attacks on a prior employee or employer would be deemed to have violated Canon 5 of the ASCE Code of Ethics.

In the present case, the CPC agreed to open an investigation into the supervisor's conduct and reached out to all parties believed to have knowledge of the matter, including not only the accused member but also the complainant's current employer and the interviewer who had reported the member's comments to the current employer. Interestingly, while confirming the general details of the complainant's account, the interviewer asserted that the supervisor's criticism had had no bearing on his decision not to offer employment to the engineer. Instead, the interviewer claimed that the engineer's salary range was higher than similarly placed engineers within the interviewer's firm and said he was simply unwilling to introduce such a disparity of salaries within his staff.

Despite denying that the supervisor's words had influenced his decision, the interviewer did admit he thought the supervisor was "probably right" in characterizing the engineer as a troublemaker. He noted that news of the engineer's NLRB complaint against his former employer had become common knowledge within the local professional community, and he said he was not surprised the engineer had found it difficult to secure a new position there. Finally, he said that when he learned a colleague in a neighboring city had hired the engineer, he felt it was his duty "as a personal friend" to tell this colleague what he knew about the new hire.

Unfortunately, the accused member himself was not as responsive to the CPC's request for information. After several failed attempts to solicit an answer from the complainant's former supervisor, the CPC received word that the member had fallen into arrears with his membership, and the member was subsequently dropped for nonpayment of dues. In cases in which a member resigns or is dropped for nonpayment while being the subject of an active ethics investigation, ASCE's rules provide that the member is deemed to have dropped "with prejudice"--meaning the member cannot later reapply for membership except with an affirmative two-thirds vote of ASCE's Executive Committee.

Meanwhile, the employee was ultimately successful in his complaint before the NLRB. Finding that the employee had been wrongfully terminated for engaging in concerted activity, the NLRB awarded the employee an amount equal to his lost wages for his period of unemployment and ordered the firm to offer the employee reinstatement at his old job--an offer the engineer declined. 

-TARA HOKE


Tara Hoke is ASCE's general counsel and a contributing editor to Civil Engineering.

© ASCE,  Civil Engineering  , June 2018


Members who have ethics questions or would like to file a complaint with the Committee on Professional Conduct may call ASCE's hotline at (703) 295-6151 or (800) 548-ASCE (2723), extension 6151. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.