Lifeguard Lessons: When to Break the Rules

Employee Firing Gone Wrong

In case you haven’t heard, a lifeguard was recently fired for saving someone’s life. It seems like a strange tale, but it can tell us some important information about being inflexible in the workplace. Certainly Orlando-based company Jeff Ellis and Associates are currently wishing they had let cooler heads prevail before firing 21-year-old employee, Tomas Lopez.

Lopez was fired after saving the life of a swimmer in trouble. The only problem? This swimmer was in a section of the beach not protected by the company, opening them up to liability issues. The irony of firing a lifeguard for guarding someone’s life wasn’t lost on the media, who immediately picked up the story. It went viral and Lopez was offered his job back with apologies, but he turned it down.

Balancing Employer and Employment Risk versus Reality

What can we learn from this tale of mismanagement that is also about employer risk? You know what they say, rules are made to be broken. In HR and hiring, this is not often the case. We stick close to the rules and employment laws because they exist for a reason and because they protect us from liability. Sometimes, however, the rules just can’t take into account every possible scenario.

Here are some things to do before deciding whether to follow the letter of the law or step outside the rulebook when it comes to employee relations and workplace investigation situations:

Always review on a case-by-case basis

Remember the rules are general guidelines put in place to help you make decisions, not make the decisions for you. In this case the Orlando-based company fired the lifeguard for, in essence, doing his job. The rules about the beach existed for liability reasons and to keep guards at their respective points. These rules did not exist to keep lifeguards from saving people.

When looking at infractions in the rules, look at all the details of the case. Were there extenuating circumstances? If so, were they strong enough to override the rule? Always look at the circumstances before jumping to a decision, whether it’s firing or hiring.

Listen before acting

Had the manager who abruptly terminated Lopez actually listened, perhaps this whole mess could have been avoided. This goes back to our last point. If you don’t listen to the circumstances, you won’t understand what really happened.

Whether it’s a company misdemeanor or something wrong with a resume, always listen to all sides. If you’re interviewing a candidate, either in person or through online video, and something seems strange, ask them to explain instead of merely writing them off. Put your listening skills to good use.

Realize some rules are made to be broken

The strong reaction and viral nature of this story of an employment involuntary termination stems directly from the fact that in this case the rule stood in opposition to common sense. Know your rulebook, work with you employment law attorney, and be familiar with US labor and employment laws, but more importantly, know when to throw it out.

In hiring, this can mean everything from embracing new technology to hiring a candidate who deeply impresses you despite being a job hopper. The rules of the traditional hiring and firing process are constantly being rewritten, after all. There will always be rules which are meant to be broken and rules which apply poorly to some situations. Don’t be the person who sticks to the written law in face of opposition from reality. This way you and your company can avoid being a viral punchline.

When do you think it’s ok to break the rules? And what should you do before ignoring the rulebook? 

 

Josh Tolan is the CEO of Spark Hire, a video powered hiring network that connects job seekers and employers through video resumes and online interviews. Connect with him and Spark Hire on Facebook and Twitter. 

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JoshTolan

Josh Tolan is the CEO of Spark Hire, a video powered hiring network that connects job seekers and employers through video resumes and online interviews. Connect with him and Spark Hire on Facebook and Twitter.

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Comments

  1. AvatarCarrie says

    Hey Josh – thanks for bringing this issue to light from an HR perspective. I would just offer up that the post itself could have more depth to it if you address a few things:

    1) To me, the lesson here is really about finding the balance between protecting the companies interests and doing the right thing by your employees and customers, all the while ensuring you are mitigating your risk to the company. At the end of day, no business is in business for the sake of the employees and sometimes we, even as HR professionals, tend to forget that. Companies are in business to make money while providing a product or service, but employees are there to help facilitate – and of course, if we don’t take care of our employees, it doesn’t matter how stellar our product or service is.

    2) The point of listening is a good one, but in this situation – what it really boils down to is the importance of doing an investigation of employee “misconduct” before firing (which of course includes listening). I always made sure my managers were NEVER allowed to fire someone on the spot unless it was an immediate safety issue. That way, you give yourself the time to cool off in the event you are just pissed at the employee (anger temporarily minimizes blood flow to the brain to ready you for fight or flight and essentially makes your temporarily prone to acting on emotion vs. logic), you allow time to re-assess the situation, to discuss with HR, to allow HR to ask questions and fact check just how big of a violation it was and to determine if it is termination worthy, not to mention you may have steps in a performance management process that very clearly outline employee documentation processes and/or the majority of cases that warrant instant termination. Just filling out an incident report and then terminating doesn’t really sound like they did their due diligence here.

    3) I’m not sure if he is CPR certified, however, if I remember correctly, people that are trained in CPR techniques have a responsibility to step in and be available when they have a situation that would require assistance. To that end, if he was on the beach while off-duty, he would likely have been within the law (even if outside company policy) to save someone’s life and if someone knew he was there and didn’t assist – I believe he could be held liable? (Someone feel free to correct me if I’m wrong, but I believe that’s the case… )

    And lastly, I don’t necessarily agree that in employment situations that rules are made to be broken. Policy does differ from law, and your policies should be broad enough (knowing you’ll never be able to account for every situation) that you have the flexibility to make decisions on a case-by-case basis. It’s more a matter of ensuring you make the right rules to begin with and that you have precedent established for how management should, in effect, manage when those sticky situations come up.

    • AvatarJosh Tolan says

      Carrie, thank you for your thorough, in-depth comment. Your second point, especially, is an excellent one. Listening is the first step needed in an employee “misconduct” situation like this and, as you said, further investigation is certainly the second. Thanks to emerging video and social technologies, stories like these can go viral in a matter of hours. Companies must do their due diligence and protect themselves from public and employee backlash by conferring with HR as soon as possible.

  2. AvatarJoan Ginsberg says

    Have you ever seen the opening scene in the movie “Miss Congeniality”? Sandra Bullock plays an FBI agent on a stake-out in a restaurant. Several suspects are in the process of being arrested when one of them begins to choke. Everyone is ordered to hold their positions and NOT come to the aid of the choking suspect. Sandra Bullock’s character decides that it is not right to allow the suspect to choke to death, and defies orders to come to his aid. While performing the Heimlich on the suspect, he is able to grab a knife from the table and use it against Sandra Bullock. A melee between the FBI and the suspects ensue, and an FBI agent gets shot.

    While this was a movie scene, I can tell you as a former police officer that it is a very possible real-life scenario. I can also guess that if this had happened in real life, and the suspect had been allowed to choke to death, there would have been all kinds of screaming on the internet about how unfair it was to the suspect, and how some rules are made to be broken.

    That’s because the general public has no idea what the reasoning is behind every rule and decision, particularly in the emergency services industry (such as lifeguarding, which I also did in my youth). Sometimes the rules (or policies) are there to prevent a greater harm that we cannot see. While it’s certainly seems possible that in this specific case the lifeguard did what was right, I can’t possible make that determination without conducting a full investigation of the scene, the policy and the reason for it, and the specific circumstances of the individuals.

    I’m with Carrie that this incident warranted that type of investigation before any adverse employment action was taken. I certainly can’t pass judgment on the employee OR the company without it, and neither should you.

    • AvatarJosh Tolan says

      Joan, I have seen Miss Congeniality, and I know the scene you’re referring to very well. As you can see above, I agree that conducting a further investigation is warranted in this situation and every one like it. I do not believe the post should be viewed as my passing judgement on the company or the employee; instead, I see it as a simple reminder of steps HR should take before deciding upon an employee termination.

  3. AvatarBreanne Harris says

    I think the interesting thing here is about the mixed messages we send employees every day. How often do we applaud our employees for “going above and beyond their job” for a customer, and yet what they did in order to “wow” the customer may have violated company policy.

    Take for example, Peter Shankman’s experience with Morton’s Steakhouse. Story here: http://shankman.com/the-best-customer-service-story-ever-told-starring-mortons-steakhouse/
    Chances are that the person who delivered the steak to Peter at the airport was not covered under Morton’s auto insurance policy. What if he had a car accident while in route? What if Morton’s had a strict 40 hour workweek policy with no overtime allowed, and this individual had already hit his 40 hours? Would he be violating company policy? Sure….was it worth it. YES! Sometimes to WOW, you have to go big.

    I’m not saying that policies and procedures are unimportant. I’m saying we can’t have it both ways. We can’t applaud our employees for going the extra mile for a customer, but then fire others for crossing the same technical liability line.

    This example also makes me think about the book my co-workers wrote- “Now You’re Thinking!” The members of the Marine Battalion saved the life of a 2-year old girl by taking HUGE risks. Things could have gone very wrong 100 times during the process, but they believed in themselves, were empowered by their leaders who trusted them, and ended up rebuilding relationships in Haditha, Iraq by doing so.

    If we want our employees to simply follow policies and procedures and never take a risk, we have to also only expect them to meet expectations…not exceed them.

    • AvatarJosh Tolan says

      Breanne, thank you for sharing Peter Shankman’s story. It’s an excellent example of a company going above and beyond to exceed a customer’s expectations. As you said, expecting employees to only follow a company’s policies and procedures only results in met expectations. Your point is very much like my third point in the post: Realize some rules are made to be broken.

  4. Avatarchris says

    See this is way people hate HR and corporate executives. I can’t really imagine working for this place and hearing about this scenario and then having the conversation about firing this dude.
    What would have happened had he let the person die? Shameful.

    • Jessica Miller-MerrellJessica Miller-Merrell says

      Chris,

      Let me just say that having worked in the retail industry I have seen my share of situations and I have been involved in many scenarios where the employee tries to be the hero and save the day. Sometimes those heroics backfire even worse and people get hurt or die because we didn’t follow procedure or policy. Companies are then liable for those heroics good or bad and get sued. I think we need to talk about these things out in the open because there are so many different “shades of gray” if you will.

      If the employee would have saved the swimmer but the swimmer didn’t make it, I guarantee that the company would have been sued for their lack of action or actions. The company is damned if they do and damned if they don’t. I, for one am glad we are having the discussion because clearly this is an area of HR and employment law that doesn’t have a definitive answer, and I want to learn from HR pros and attorneys who are more experienced or offer a different perspective than I.

      Thank you everyone for the comments. Can’t wait to hear Josh’s responses.

      JMM

      • AvatarJosh Tolan says

        Chris and Jessica, I appreciate your inputs. Jessica, even professionals don’t have definitive answers for what to do in situations like these. The fact is, there are always too many “what ifs” for us to ever create step-by-step procedures. All we truly have are guidelines that should be followed, yet ignored when common sense and human instinct tell you differently.

          • AvatarJosh Tolan says

            This is true. The point I’m trying to make is that I do highly recommend seeking advice and alternative perspectives from HR pros and attorneys as you mentioned, but it’s important to understand that they may not have all the answers. And at the end of the day, we are all accountable for our decisions.

            I think what is even more important is that issues like this are being discussed because bringing these ‘shades of gray’ to light enable professionals to weigh in on the subject and turn the ‘damned if you do, damned if you don’t’ scenario into a cut and dry one or the other.

  5. AvatarJoan Ginsberg says

    Chris and Jessica-

    Here’s an even more specific example, but still very likely in my experience: the lifeguard tries to save the swimmer and they both die. The company gets sued by BOTH estates. Maybe the company can’t bounce back after all of the negative publicity and the lawsuits and closes up. Hundreds of people lose their jobs.

    It may sound very cold, but sometimes these policies/rules/laws exist because one death or injury is better than the alternative.

    Attorneys have a saying “hard cases make bad law”. This means that sometimes emotion and sympathy make things seem harsh, but if you succumb to those sympathies you end up with an even worse law or rule.

  6. AvatarHeather Bussing says

    The lifeguard was on duty and was asked to help by people on the beach. Co-workers covered his area and contacted emergency services, while he was about 50 yards outside his area. I think under these circumstances, it’s more likely that a court/jury would find he had a legal duty to rescue–even outside his area. It is aslo more likely that the company would have been sued if he had not gone to try to help and someone had died. For a pretty good overview of the law relating to rescue see the Wikipedia article http://en.wikipedia.org/wiki/Duty_to_rescue.

    As for breaking rules, if you really believe it’s important to consider situations based on what is going on, then having a bunch of rules just makes that more difficult.

    Regardless of the rules, life is more important than lawsuits.

  7. AvatarJoan Ginsberg says

    Oooh! I’ve got to argue the legal aspect with Heather -just because it’s fun! 🙂

    I admit that I have done zero research on any cases regarding a conflict between legal *duty* and work policy violations, but I do know that the courts see a difference in legal *rights* and workplace policies.

    People have the legal right to smoke, but might not have a workplace right to do it at their place of employment. Or you may be able to terminate someone for testing positive for marijuana, without any liability whatsoever, even though that employee was legally using the drug under the jurisdiction’s medical mariuana laws. (Happened in Michigan.) Obviously this is so because what society is trying to achieve with the right is so much different then what a company is trying to achieve with their rule.

    To me, it’s not much of a stretch to conclude that if you can terminate for workplace violations even though an employee has a legal right to engage in the behavior, then a court might find it can be done for exercising a legal duty. For the same reason – there are different societal considerations when dealing with workplace violations. I would like to see a cite if you have one, Heather, about the intersection of legal duty and workplace rules.

    That said, I am in total agreement that this was a massive HR failure, and if you want people to use their best judgment, don’t have rules.

    Here’s another saying – this time a police one – “It’s better to be judged by 12 than carried by six”. 😉 Although I don’t think that’s what you meant when you said life is more important than lawsuits. 😉

    • AvatarCarrie says

      I definitely agree that it becomes a sense of legal responsibility (vs. a legal right)… As I indicated in my earlier post, especially if he is CPR certified, he would have a legal responsibility in which he could even be personally sued (and likely along with the company) to Heather’s point. Have no clue if any case law exists on this, but I’d bet it just might!

      But to the comment that keeps coming up about rules being made to be broken, I still disagree with that point… it’s a typical employee centric comment (not one that I would expect to come from a seasoned HR professional) and it doesn’t take into account that if you craft your policies at the macro level vs. micro (knowing you cannot account for every situation) that you still shouldn’t find yourself in a situation in which said rules have to be broken… when you draft company policy, you do so in such a way that accounts for variables, provides measures for flexibility and allows for exceptions under extreme circumstances. Too often however, HR operates under this fear of risk instead of common sense and that’s when bad decisions, as in this case, happen.

  8. AvatarBuzz Rooney says

    This post and the discussion that has come from it are awesome. This is why I love HR! These are the kinds of discussions happening in my office almost every day.

    Without knowing the full history of this issue, I can’t and won’t say what the employer should or shouldn’t have done. It is so easy for the people who don’t have to mitigate this kind of liability to pass judgement on these tough decisions. Too easy, if you ask me. Employers are damned if they do and damned if they don’t as soon as an employee breaks a rule. These types of stories only make me say “Whew! Glad that’s not on my desk” and send positive HR vibes to whoever is dealing with that mess.

    One exercise I use with my staff in deciding these types of issues is “What’s The Better Story” — we look at our options and practice reciting the story of what happened to some future, unknowing party using each option. The “better story” becomes the option we choose. In this case, what is the better story: lifeguard leaves his assigned area to save a drowning person and we fire him on the spot? or lifeguard leaves his assigned area to save a drowning person and we choose some other course of discipline/corrective action? I am still not willing to answer without knowing the full history of the issue — but I hope the example of the exercise makes sense …

    Good policy and its enforcement leaves wiggle room without throwing the book out the window. Rules weren’t meant to be broken — they were meant to be followed so that everyone stays out of trouble.

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