11 Things to Think About Before You Fire

Firing an employee is difficult. Many times employers realize that an employee has to be let go, but put off the decision. Some explore other avenues to correct performance or behavior deficits, while others ignore the problem until it reaches a critical stage.

The decision to discharge an employee should be made only after careful reflection. Yes, I understand there are circumstances where the misconduct is so significant that immediate termination is warranted. Those instances tend to be the exception rather than the rule. In most cases, the employer is aware that things are just not working out, but is either distracted with more pressing issues or just does not want to address the problem.

The purpose of this Blog post is to review some areas for consideration before the decision to discharge is made. Ultimately you will have to weigh these considerations and make the call.

1. Have all the pertinent facts been recorded?

Before making a discharge decision, employers should make sure that all facts are recorded accurately. That means an assessment of all documents in the employee’s personnel file and all notes kept by management concerning the employee. Assemble all performance evaluations, attendance and payroll records, customer communications, calendars, discipline and warning records, any records of unsatisfactory performance that have been discussed with the employee and any documents that may be lost during the normal cycle of business.

Once these records are compiled, take the time to read them. All of them. Evaluate them for thoroughness, fairness, and compliance with any published internal processes. Oftentimes, particularly in cases of underachieving employees, a review of the records will reveal that performance evaluations are neutral, there are no records of unsatisfactory performance that were discussed with the employee, and there are no discipline records. This may cause you to reconsider the decision to terminate or, at the very least, assure that, in the future, your management team is more disciplined in its record keeping.

2. Is the decision being made on facts, not inference, suspicion or emotion?

Over the years, I have consulted with numerous employers that were sued as a result of terminating an employee. As I reflect back on these cases, the majority resulted in litigation because the employer allowed rumor or emotion to dictate rather than the facts. While it may feel cathartic to tell an employee, “You’re fired! No, you are double fired, and so are your wife, your children, your neighbors, your pastor, and your grandmother!”, it rarely leads to a productive dialogue. Decisions to terminate that are not grounded in fact, rarely involve a clean parting of ways, and, more often than not, result in attorney or administrative agency involvement.

3. Is the decision maker or decision-making group aware of all critical facts?

If your company is the subject of a lawsuit arising out of a termination, rest assured that a competent attorney will have all the facts at their disposal that relate to their client and the manner in which others within the company have been treated. The failure to communicate critical facts to decision makers creates the perception of bias, unfair processes, and the suspicion that the action taken was not based on legitimate business criteria.

4. Have other options been considered and rejected?

Are there other options that have been used with other employees under similar circumstances? If so, why are they not being used now? Consider whether other options, such as a transfer, demotion or suspension, may be just as effective as a termination. In most cases, termination does not conclude the process. A new employee will have to be hired, trained, and learn your institutional processes. All of this involves the allocation of time, financial, and human resources.

5. Has anyone taken the time to communicate with the employee?

In an age of email, instant messaging, text messaging, and time pressures, face to face communication has become a lost art. Some of the questions that should be asked are:

a. Does the employee fully understand the job requirements and behavior standards?

b. Have you explained where the employee failed to meet job performance or behavior standards?

c. Has the employee received at least one warning of possible dismissal and are you sure the employee understood the warning? Was a record kept of the warning?

6. Has the employee been given sufficient time and opportunity to correct any performance and behavior deficits?

An employee that has been placed on a performance improvement plan should be given the opportunity to perform in accordance with the goals contained in the plan. That means that the goals must be realistic and the employee should have access to internal resources and coaching so they have every opportunity to succeed. Generally speaking, an employee that has been given a fair opportunity to correct their performance and has failed, will understand that discharge is a necessary step.

7. Has the employee’s story been heard?

It is easy to make a decision if all your information comes from one source. That is why it is important to hear the employee’s story and consider the facts from their point of view. Consider whether the employee has personal difficulties, special situations, or any other mitigating factors. By taking this approach, not only will you have a fair process but one that appears fair. In addition, this can help identify any areas where you may have a legal duty to act.

Since terminations are rarely events that are devoid of emotion, it is my preference to ask the employee to provide a written report of events. This assures you have a written record of what you were told and avoids, or at leasts minimizes, future disputes over what you were told.

8. Have you thought about the goose and the gander?

One of my mother’s favorite phrases was, “What is good for the goose, is good for the gander.” Of course, as a young child I had no clue what a gander was but I knew that this meant that she would be fair in every respect. Nevertheless, this old saying is one that employers should keep in the back of their mind when making a termination decision. I can tell you, from having represented employees, that one of the first things an experienced employment lawyer will examine is the manner is which your company has handled similar circumstances. If it turns out that a similarly situated male employee received a suspension while a female employee was terminated for the same conduct, your company may find itself on the receiving end of a gender discrimination lawsuit. Consistency in the application of policies, processes and discipline is a vital component to any termination decision.

9. Are there issues of discrimination or unfair treatment that may need to be addressed before a final decision is made?

Unless you are faced with issues of serious misconduct, make sure that any reports of discrimination, unfair treatment or retaliation have been thoroughly investigated and, preferably, concluded, before going forward with a discharge. On occasion, I have seen employers decide to terminate an employee while there is a pending complaint of harassment or discrimination. Their reasoning has been that the employee is an “at will” employee and, thus, can be terminated at any time and for any reason. While that may be true, courts will look to the temporal relationship between a decision to terminate and a report of harassment or discrimination. The closer in time these two events are, the more likely a judge or jury will conclude that your actions were the product of illegal retaliation rather than a desire to part ways with someone that did not perform adequately.

10. Have you planned how the dismissal will be communicated to the employee?

Once you have decided to part ways with an employee, you will need to consider when to communicate the decision, where to communicate the decision, who will deliver the news, what the employee will be told, how their employment will be concluded and to define the parameters of the exit interview.

a. When and where

Give some thought to timing and privacy. Once an employee is terminated, they should not have to return to work, nor should they have to suffer the embarrassment of having to pack their personal belongings in the presence of their coworkers. A better approach is to select a time and location that will eliminate or minimize the employee’s personal interaction with coworkers. Complete the process, allow the employee to leave, and have their personal belongings delivered via a delivery service.

b. Who

Select someone who is respected and is considered detail oriented so you can be assured that all necessary items will be addressed.

c. What.

It would be nice if a termination could be as simple as a quick, “You’re fired.” While that may work for a mom and pop business, that approach will only create difficulties for larger employers. You should be able to articulate the reason for termination, discuss wage and benefit information, advise when the employee will receive their final paycheck, when they will be paid for any accrued but unused personal time off, have benefits forms available, obtain contact information, arrange for the return of company property in their possession, be prepared to discuss any post employment restrictions, such as non-compete agreements and confidentiality agreements, obtain passwords, and conduct an exit interview. In the event the employee is unable or unwilling to complete an exit interview, make an appropriate notation in their file.

Finally, avoid meaningless statements such as, “I understand how you must feel.” No you don’t and you will never understand how this employee feels. Statements of this nature should be avoided, since they only engender ill feelings on the part of the departing employee.

11. Would a jury-six months later-conclude that the treatment accorded the discharged employee was unquestionably fair?

If, after review of these eleven questions, you continue to believe discharge is the correct decision then proceed with the discharge.

Storm Clouds at The Weather Channel

The Weather Channel is currently embroiled in litigation concerning the outcome of a sexual harassment and retaliation arbitration in which the arbitrator issued what one media outlet has described as a “blistering arbitration ruling in favor of a former anchorwoman...” Presently, The Weather Channel is attempting to keep the results of that arbitration cloaked in secrecy.

Here are the facts as I understand them:

The plaintiff (Hillary Andrews) went to work for The Weather Channel in 2003 and eventually was paired with a male anchor (Stokes). Andrews replaced another female who had reported sexual harassment by Stokes. According to Andrews, her predecessor suffered daily abuse by Stokes and would hide in her dressing room in between shifts to avoid Stokes. The predecessor was eventually let go after five (5) reports to management complaining of Stokes’ conduct. For a more detailed description of what Andrews’ and her predecessor endured click here.

Andrews alleged that Stokes was “sexually attracted to her and romantically obsessed with her.” Stokes would make crude sexualized comments such as, “Will you lick my swizzle stick?” In addition, he would grill her on her personal intimate life, including her sex life with her former husband. Stokes would ask “the same invasive questions about her sex life over and over again, non-stop. He would interrogate her for at least an hour during the three-hour time period between our shows on both Saturday and Sunday. He was relentless in his questioning; he would press incessantly, asking the same questions over and over.”

Andrews also alleged that Stokes would stare at her chest, follow her into her dressing room and invade her personal space. He would make some of the following comments:

a. “It tortures me when you wear those heels and skirt.”
b. “You are the most attractive woman I’ve ever worked with.”
c. “I find you very attractive.”
d. “You know I find you attractive.”
e. “I could win you over if I wanted to.”
f. “I know you are attracted to me, tell me, just say it.”
g. “ Sometimes I think about what it would be like.”

Andrews rebuffed Stokes. Once it became apparent to Stokes that he was not getting anywhere he began to sabotage Andrews on the air.

At first, Andrews was reluctant about reporting to management because she knew of what happened to her predecessor and she knew managers would speak of “putting up with Bob.” When she finally requested a different partner, she asked her supervisor, “Do you need me to tell you why?” Her supervisor responded, “No, I understand.”

After reporting this incident to The Weather Channel and advising that she would no longer tolerate Stokes’ abuse, Ms. Andrews received poor job assignments. Later, she would learn that her contract would not be renewed.

Andrews alleged that The Weather Channel failed to take action on her claim because Stokes had high ratings and was popular with viewers. The Weather Channel lost this case in an arbitration proceeding in which the arbitrator was highly critical of the manner in which this case was handled. Stokes was fired after the arbitration.

Lessons Learned:

When you have a problem, address it head on.

From the facts of this case, it is clear that the employer was aware of Stokes’ conduct but chose not to be proactive. Although there may be some reluctance in taking action when a highly placed or public employee has engaged in inappropriate conduct, put those concerns aside. You have an obligation to address those problems. Handling events of this nature always becomes more complex as the size of your company grows. In small companies these events can be handled discreetly. That luxury that is not available to larger publicly-held entities who have reporting requirements and risk, in today's volatile economic climate, having the price of their stock tumble with the disclosure of allegations of harassment or discrimination by a major figure within the company. In many of these cases, the signs were present, but no one wanted to be proactive.

Handling the complaint saves you money and sends a message.

One of the great myths is that employers who do the right thing and address sexual harassment in the workplace, will get sued. My experience has been that most employees only come into a lawyer’s office once it appears their employer is not willing to address a problem or they perceive they are not being treated fairly.

By being proactive, more often than not, you can stop a claim in its tracks. In addition, you will save the hard costs of litigation which can run upwards of several hundred thousand dollars in defense fees and costs, as well as, the soft costs of litigation. By soft costs I mean the general loss in productivity that is experienced, the loss of time associated with the retrieval of data as the parties exchange information, and the loss of time associated with participation in litigation related events such as depositions and trial. Don’t misunderstand what I am saying. You should never roll over just because a claim is made. However, if you determine unlawful harassment or discrimination has occurred, be firm, consistent, and make it clear to all concerned that you intend to stop the problem. In doing so, you will send a message that your company does not tolerate this type of conduct. This is one time where the rumor mill will work to your advantage. Consider the following. Joe is fired for sexually harassing female coworkers. When his replacement is hired, one of the first questions to coworkers will be, “What happened to the person who had my job?” What do you think Joe’s coworkers will say?

Think about how the actions you take today will look to a jury that is evaluating the case with the benefit of 20/20 hindsight.

Always take considered actions. Not only should you be fair but you should appear fair. In The Weather Channel case, perhaps someone should have thought of how their actions would be perceived at a later date. In many cases, a report of harassment or discrimination may not have the necessary components needed to succeed in court but, the employer will act in such a way that gives rise to a claim for retaliation.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional who can address your particular legal needs.

Dentist gets hit for doing more that just flossing

While enrolled in the Bryman College dental assistant program, Candace Wahl was placed in an unpaid externship at Dash Point Family Dental Clinic. The clinic was co-owned and operated by Dr. Don S. Moore. Candace did well in her externship and received two (2) favorable written evaluations. According to the clinic’s office manager, Dr. Moore liked to work with her.

After completing her externship, she was hired by Dr. Moore’s clinic in a full time capacity. A few months after her hire, the doctor began to make inappropriate and sexually explicit comments to Candace. These comments included discussions about his wife’s preferences during sex, his physical attraction to Wahl’s mother (Wahl’s mother was a patient), comments about oral sex, his sex life and the size of his penis. In addition, the doctor would comment about the bodies of female patients and employees, including Wahl.

In the final months of her employment, the doctor’s sexual comments became more graphic. His office manager, testified that she heard the doctor’s comments. She also testified that Dr. Moore demanded that the office manager perform oral sex on him. He also asked the office manager to buy condoms so he could have sex with her on the conference room table. Apparently, this conduct caused the office manager to warn externs about Dr. Moore and describe him as a “pervert.”

Candace, like most young people in this circumstance, tried to ignore the doctor and just do her job, however, the doctor would not stop. On Monday, February 23, 2004, Dr. Moore told Ms. Wahl that he wanted her to watch him masturbate. Later that day, he asked her to accompany him to the darkroom so he could teach her how to duplicate patient films. While in the darkroom, Wahl could smell lotion and hear the doctor masturbating. The doctor also asked Wahl to stop what she was doing and turn around so he could “finish faster.” Wahl refused to turn around and told the doctor that what he was doing was wrong. This incident ended when Wahl’s wife, a dental hygenist at the clinic, knocked on the darkroom door. Wahl quit the following Monday. She would later report this to the police.

After Wahl quit, Dr. Moore instructed the office manager to write a letter denying any sexual misconduct occurred between the them, that is the doctor and the office manager. The doctor also directed the office manager to write letters of reprimand, back date them and place them in Wahl’s personnel file. The doctor would later admit to back dating the documents but claimed the letters accurately reflected violations of clinic policies.

At trial, the judge found Dr. Moore’s explanations not credible and felt that he fabricated events. The trial judge found that Wahl had been wrongfully discharged in violation of Washington’s public policy against gender discrimination. The appellate court agreed with the trial judge explaining that an employee can be terminated either expressly or constructively. An express termination is one where the employee is told, “You’re fired.” Here the court felt that Ms. Wahl was constructively terminated (also referred to as constructive discharge) in that the doctor “made working conditions so intolerable that a reasonable person would have felt compelled to resign.” The court also held that, as a small employer, one that does not fit the definition of an employer under Washington Law Against Discrimination (employers with 8 or more employees), Dash Point Family Dental Clinic could be held accountable under Washington’s common law. For those interested in reading more about the court’s reasoning, click here.

The Bottom Line: At one time, some employers felt, that since they did not employ 8 or more people, they were immune from laws protecting our citizens against discrimination. That is not the case. While an employee that brings suit against an employer with less than 8 people, may not have the same arsenal of tools available, as they would if their claim were brought under the Washington Law Against Discrimination, they still are able to vindicate their rights in court.

I think we can all agree that the doctor not only crossed the line but went way over into the next county. Dr. Moore was fortunate that Ms. Wahl had this trial in front of a judge since the result in front of a jury would probably have been far worse.

Employers, when an employee leaves use common sense.

First, conduct an exit interview. That way you define the basis for their departure and any potential claims that might be out there.

Second, never, did I say Never? Well I meant, NEVER!!! Never recreate documents or back date documents. That only creates suspicion. I know there are times when employers fail to document an event or complete a form. If you feel a need to document an employee’s “sins” following their departure, then do it in a memorandum form, after talking to your lawyer.

Employees, remember that you have the burden of proving an intolerable workplace in the event you contend you were constructively discharged. The law presumes that you quit unless you were fired or laid off. This is important because your unemployment benefits could be denied if you fail to prove constructive discharge and it could also impact the amount you will be able to recover in a later lawsuit.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal cases often turn on specific facts. Please do not use the information in this Blog as a substitute for sound legal advice given by an experienced legal professional.