The Importance of Being Earnest (When Firing)

Not everyone is cut out to play the boss.  While I suspect there are a few sadists who actually enjoy the act of firing an employee, most people hate delivering bad news and learning you’re now jobless usually ranks near the top of the bad news heap. 

From the point of view of a lawyer who represents employers in lawsuits, however, I view the process of termination to be extremely important.  It can be tempting, when one is forced to deliver the news, to sugarcoat.  Most sugar-coating doesn’t really make anyone feel better.  For example, “you’ll always be part of the family,” or “you’ll thank me someday for this chance at a fresh start,” might have worked for George Clooney in “Up In The Air,” but it’s a pretty stupid thing to say in the real world.

One brand of sugar-coating that can be really dangerous concerns mischaracterizing a termination for poor work performance as something other than what it is.  In particular, suggesting a sub-par employee is being “laid off” creates substantial risk.  If the “redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext.  That the actual goal was to eliminate the employee on the basis of some protected characteristic (i.e., race, gender, disability, religion).  This kind of evidence plays well at trial: like all of us, jurors love to hear about conspiracies and cover-ups. 

One way for employers to make the act of termination less of a surprise–and therefore less painful for everyone involved–is to make termination the final step in a progressive discipline policy.  Implementing such a policy starts with  a frank discussion with the underperforming employee that is documented by a dated, written record of the discussion.  This type of discussion does not even need to be characterized as discipline, but rather a coaching tool. 

If verbal discussions (documented) do not improve performance, the next step should be a written notice that describes the problem, proposes a solution and is provided to the employee concurrently with the verbal discussion.  The employee should be asked to sign this document, and perhaps there will be a space dedicated for any response the employee might have.  lf the problem persists, the possibility of one or more additional written notices/warnings can be provided, but the message communicated should be that, after a defined number of written notices/warnings, termination will result. 

A progressive, documented discipline policy serves two really important purposes.  For me–your lawyer–it is important evidence if a wrongful termination or other lawsuit results from the employment relationship or termination.  Perhaps more importantly, though, it gives the employee every chance to succeed.

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com. View all posts by Alex Craigie

One response to “The Importance of Being Earnest (When Firing)

  • Branigan Robertson

    Very accurate statement: “If the ”redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext.” Good article.

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