How To Fire

I’m a stereotypical HR lady.  I have two cats, a couple Coach bags, and I like to fire people.  Now, nearly ALL the HR people I know don’t like to fire people, but based only on pop culture, we share the reputation that we like to fire people.  (I actually do, because by the time my client calls me to ask, firing the person is almost always the right decision.  But I digress…)

There comes a time in every HR and management person’s career where they have to fire someone.  There also comes a time when an employment attorney provides advice on how to actually fire someone.  This isn’t necessarily legal advice on whether the term will have legal consequences, but nevertheless, we need to teach people how to fire.   So, without further ado, follow these steps:

  1. Talk with the employee. I ask my clients whether the employee has any idea that they could be fired.  If they don’t, maybe we should step back and go back over performance expectations.  Or, if it is misconduct related, should we give the employee a second (or third) chance?  If the employee knows or the behavior is eggregious, move on to step two.
  2. Gather documents. Hopefully, a manager will have documented conversations with the employee or at least documented expectations the employee was supposed to meet.  If none, ask for some.  Documents can be an email describing conversations, actual write-ups, text messages, or other things that can be printed in some format.  Put all these documents in the employee’s file.
  3. Schedule the termination. No, you don’t have to put the meeting on the employee’s calendar (if they have one), but you need to make sure all the people who need to be there or have post-term action items know of the termination.  This includes the manager, HR, and likely IT. Wednesdays after lunch work best for terminations – the employee has a couple of days to check with an attorney if they believe the termination was unlawful, and more importantly, the team that has just suffered a loss gets two days to recover before the weekend.  If you terminate on a Friday, everyone sits with it all weekend, wondering to themselves what happened, stirring the pot, and potentially causing a bunch more drama.  It’s better to give everyone a couple of days to ask questions, figure out who will take on tasks, etc. before a weekend.  Then, once Monday comes round, the drama has largely dissipated.
  4. Prepare bullets. The manager should be the one actually doing the firing (this is why they make the big bucks), and they’ll need to prepare.  Their bullets will be the expectations the employee didn’t meet, what happened when they didn’t meet those expectations (e.g. impact on the org or team), and the reason for the termination.  HR prepares bullets for what happens after termination like the return of personal belongings, COBRA, what happens with accrued PTO (or vacation and sick time), and severance package information (if any).  Also, prepare for any questions the employee might have that you can anticipate.  Fair warning, people respond to a termination in a bunch of different ways.  You will not be able to anticipate all of them, but knowing the employee will help get you most of the way.
  5. Get together the stuff. Some of the stuff you’ll need to gather include: (1) termination letter; (2) severance agreement (if you want); (3) COBRA notices; (4) box for personal belongings if you want the employee to take their stuff immediately; and (5) information to gather passwords from the employee.  (Talk with IT on this last one.)
  6. Do it. In person.  In private.  If the employee works remotely, schedule a video conference.  No one should get fired over an email, post-it note, or letter alone.  Sometimes, it makes sense to terminate over the phone, but if at all possible, everyone should see the whites of each other’s eyes.
  7. Launch IT. Once you’ve done it, protecting the organization’s trade secrets, confidential information, and other assets (including co-workers) is the top priority.  Contact IT to close down accounts, access, remove access over personal cell phones, or put in motion plans to redirect email and telephone contact from customers, vendors, or other internal folk.  You may even need to talk with security to get keys and/or fobs.  If the organization leases space, tell the landlord who gets access to the building, namely not the fired worker.
  8. Gather their stuff. You can either have the employee pack up their stuff (if they have an office) or pack it up yourself.  If you’re the packer, take pictures of each drawer or shelf before you pack up in case the employee says you forgot something.  This way, you can present pictures to the employee and ask for more specificity as to what they’re looking for.
  9. Talk with the team. When someone gets fired, no matter how much it is needed, the manager and sometimes, HR, needs to meet with the team to go over what happens next.  The manager doesn’t need to share why the term happened in most cases, but easing the minds and anxieties of the team is crucial to getting through the loss.  Be ready with questions about tasks, desk location, and a whole multitude of concerns employees might have.  It’s okay not to know all the answers, but assuring employees you’ll get back to them is crucial.
  10. Regroup. Once the termination is over and maybe even a couple days later, meet with the manager again to go over what could have been done differently – not necessarily better, just differently.  Could have expectations been set better?  Could more discussions could have been had?  Should we shift how tasks are assigned?  This is a really important opportunity to learn something from what just happened.  Don’t skip this step!

No one thinks terminations are actually fun – they’re not.  That said, firing someone is a necessary part of effectively running a business.  Every business.  If you haven’t ever done it, then it’s likely that you should have.  Remember, it is SIGNIFICANTLY more expensive to keep someone around who isn’t meeting expectations or is toxic to your environment.

 

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Sometimes, the Law Sucks

This evening, three individuals lost their jobs – through reassignment or termination – because they truthfully testified under oath in a congressional hearing regarding their knowledge of unlawful behavior.  While the law recognizes that termination because of testimony about illegal activity is unlawful, sometimes, the law doesn’t have a good remedy.

For example, a woman is sexually assaulted at work.  She reports the assault, and the bad actor is arrested and terminated.  If the bad actor was a co-worker with no supervisory responsibilities or prior history of assault, the woman doesn’t have a claim against the employer regardless of how egregious the assault was.  She could possibly have a workers’ compensation claim, but no claim for harassment due to the affirmative defense the employer would likely use to its advantage.

Another, a black man is forced to resign after his employer did nothing to stop near-constant harassing conduct.  He finds a better paying job right away, so he has no wage loss damages whatsoever.  He may have some emotional distress damages, but he never saw a therapist, has no medical records establishing severe emotional distress, and is sleeping well now.  When plaintiff lawyers meet with him and evaluate whether to take his case, they decide his damages are not sufficient to cover their costs given it’s highly unlikely that they will get through trial.  So, for business reason, they don’t take his case as many others like them.

Yet, one more.  Ninety women have come forward to tell their stories of Harvey Weinstein.  Yet, only a few have claims within the statute of limitations and have convinced prosecutors to try him for his sexual misconduct.  Others did not bring claims within the statute of limitations of the few civil claims they may claim.  For most women, there is no recourse.

So, yes.  Sometimes, the law doesn’t have an appropriate remedy.  Sometimes, it just plain sucks.  If you’d like it not to suck, vote, talk with your legislators, and remember to vote.

 

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The NLRB’s Bad Decision

About a third of the work I do is workplace investigations – everything from culture reviews and employee misconduct to harassment.  I love them!  Recently, the National Labor Relations Board issued a new decision that greatly affects employer policies around investigations.  Essentially, the Board overturned a decision that allowed employees to talk about an ongoing investigation.  Now, employers can prohibit employees from talking about an investigation.  In fact, employees can now get fired for talking about it.

I’m not going to lie.  I really don’t like this decision.  I know, I know.  My perspective is the polar opposite of nearly every other investigator out there.  But hear me out.  I’ve got two reasons why this decision is bad for employers and employees.

First, #metoo took off when women talked with each other about their experiences.  When Jodi Kantor, Megan Twohey, and Ronan Farrow started meeting with women in Harvey Weinstein’s sphere, the more women they spoke to, the more harassment they found.  Once one person came forward on the record, it was easier for others to come forward and share how much a monster Harvey really was.  Now, there are 90 women who have come forward.  The same thing happens in companies that don’t end up in headlines.  When one person comes forward, others follow suit.  (Pun not intended.)

Harassment targets fear speaking out alone, and intentionally, harassers isolate and separate their targets so they feel all alone and that no one will believe them.  When targets know someone else has had a similar experience and they’re willing to report it too, they may even come forward together.  So, knowing about others and talking with them gets targets to report.  Something employers want, right?

Second, during an investigation, it is incredibly common to have reluctant witnesses – those who give you one-word answers and are all jittery when they sit across from you.  You listen to them and know they’re not sharing everything.  No matter how much prodding you do, they clam up.  If the investigation lasts long enough, the witness may come back, ask to speak with you again, and this time, they share more.  They may even share everything, including their experience being a target of harassment or provide the evidence you’ve been looking for.  When you ask why the change of heart in coming forward, the answer is often that they spoke to someone else and they felt they needed to “do the right thing.”  It makes it more difficult to evaluate them as a witness, but if they didn’t speak with anyone, we’d never get their information.

Now, other investigators have argued that they don’t want employees to chat with each other because they could “sync” stories or lie and that would interfere with their investigations.  I get that, but I’d rather have employees come tell me everything knowing that they’re not the only ones sticking their necks out.  And, if employees sync their stories, the investigator will hear the phrases suggesting they’ve colluded and are not genuine.  We’re trained in this.  We have experience in this.  We see it a lot.  We should be able to handle this separate from a policy prohibiting employees talking that puts their jobs at risk.

In their new decision, the Board argues that we can’t offer employees confidentiality in what they tell us if the employer doesn’t prohibit employees from talking about the investigation.  But no investigator says, “Well, Suzy told me XYZ” – we don’t share what people tell us.  In most cases, I don’t even share names with decision-makers.  If I told decision-makers exactly who said what, retaliation would be a real possibility.  So, I tell folks I interview that I don’t share names, and this comforts them, freeing them to open up.  If they talk with coworkers, they’ve picked people they’re comfortable with.  I share the important facts with decision-makers that they need to make any decision they need to.  So, the Board’s argument is hooey.

The National Labor Relations Act protects employees from discipline (including termination) when they get together to talk about the terms and conditions of employment.  This was the basis of the decision the Board overturned.  In some ways, the Board’s new decision feels like a response to the #metoo movement and an attempt to keep employees from talking about their experiences by allowing employers to have strict policies against employee talking about an investigation.  And, this is a shame.  Employers, trust your investigators to handle the information you do not need to adopt a policy in accordance with the Board’s new decision.  I recommend against it.

 

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Pens & Company Ink

Recently, I gave a presentation on sexual harassment to a group of compliance professionals from some of the largest organizations in the Midwest.  At one point, an audience member called me a Sexual McCarthyist because I said CEOs shouldn’t have relationships – even consensual ones – with anyone in the company.  Given the news out of Chicago on Sunday, let’s go over why.

When a CEO engages in sexual harassment, the organization is vicariously liable for the conduct  Citing U.S. Supreme Court case Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998), here’s what the EEOC’s Guidance says:

An employer is liable for unlawful harassment whenever the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.”

The Guidance goes further and lists individuals who could be considered an organization’s proxy, including president, owner, partner, and corporate officer – like a CEO.  Vicarious liability means the organization has no defense to a harassment claim and is automatically liable if the conduct was indeed harassment.

So, was the conduct harassment?  Well, let me take all of your hopeless romantic hearts and crush them.  Relationships fail at a remarkable rate.  Think of all the people you have to date before you find “the one” and then “the one” has a better-than-fair chance of ending in divorce.

Now, imagine you’re a CEO.  You have a significant amount of authority over everyone in your organization.  You start flirting with an employee.  The employee may feel that they don’t have the option to say no to a couple of dates.  Things start to heat up, but something is not right.  The employee feels they can’t break up for fear of losing their job or ending their career (like blacklisting, etc.).  So, even though they may have liked the attention at the start, they can’t stop when it turns ugly.  Now, the relationship is no longer consensual.  This is harassment.

Or, what if the break-up is consensual but now the CEO has to rate the employee’s performance?  The employee is afraid that the CEO will be vindictive or will treat them unfairly because of the break-up.  This could be retaliation.

The best thing an organization can do is prohibit CEOs (and other C-suite individuals) from having relationships at work.  Period.  Institute a policy.  Talk with the board and leadership.  Explain you will enforce this.  Then, if it happens, take action.  This was what happened at McDonald’s.  This is what happened at Intel.

As my grandfather said (to his 14-year-old granddaughter (see, I was made for this work)), “Don’t get your money where you get your honey,” and “Don’t dip your pen in the company ink.”  If you’re a CEO out there, take these idioms to heart.  Not following them could end your career.

 

 

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The Law is the Basement

My house was built in the late 1890s.  It still has a dark closet that once functioned as a root cellar.  It’s now full of odd, rarely used cooking equipment, Christmas ornaments, and creepy cobwebs.  We now call it the punishment room as a threat designed to spur good behavior in my guys.  No one wants to be in there, but technically, it is a functional closet.

The law is often like that room.  It tells us the minimum of what is expected of us – what is the basement of how we can treat each other.  It’s functional but undesirable.  Just like my guys, no one wants to be in the basement.

But sometimes, the law isn’t even the basement.  It’s lower.  Much lower.  Never has that been clearer than today.  Today, the Supreme Court is hearing arguments in three cases involving whether “because of sex” protects individuals based on their LGBTQ status.  If the Court finds Title VII doesn’t protect the LGBTQ community, employers in 28 states will be able to fire someone because of who they are and who they love.  What’s really scary is that here is a real possibility the Supreme Court will find that the LGBTQ community is not protected.

What will this mean for employers?  I hope nothing.  I hope employers understand how stupid (yes, I wrote “stupid”) it is to discriminate on this basis.  Not only is it unlawful in many states – including Minnesota – it is bad for business.  At least one prominent study showed how LGBTQ-supportive policies were great for employees and business alike.  Being inclusive is the right thing to do.  Period.

The U.S. House of Representatives has passed the Equality Act that would protect the LGBTQ community regardless of how the Supreme Court finds.  But, Senate Majority Leader Mitch McConnell refuses to allow a vote on the bill.  It’s likely the bill would pass if it reached the Senate floor.  In the meantime, the message to employers is that Congress doesn’t care if you discriminate.

But you don’t have to.  Employers don’t have to do the minimum.  You can keep employees out of the basement.  We should treat each other fairly and kindly regardless of LGBTQ status.  Here’s hoping the Supreme Court does the right thing, and the Senate does too.

In the meantime, no one can define your worth.  You’re all worthy.  Sending love and hope to everyone today.

 

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Deep Breaths about Wage Theft

As of July 1, 2019, Minnesota’s new Wage Theft Law will go into effect.  If you read anything about this new law, it is easy to assume it places many, many new obligations on employers.  But, like many things, take a deep breath.  The new law isn’t nearly as onerous as you might think.

First, the new law requires employers to follow old laws.  Employers have to pay employees.  Employers have to pay at least minimum wages.  Employers have to pay overtime.   Employers have to have paystubs with a bunch of information on it that specific how the employee earned pay (pay period dates, what is regular pay, what is overtime, what deductions are for, employer name, address, and telephone number, etc.).  None of this is new.  What is new is the amount of penalties that accompany failure to follow these laws.  Those have increased and failure to follow the law could include very real criminal penalties.

Second, if you have offer letters, much of the new “notice” requirements are already in your offer letters.  Start date, how much the employee earns, basis of pay (salary or hourly), when employees will get paid (weekly, biweekly, twice monthly, etc.), exempt vs. nonexempt status, any commission structure (if applicable), what shift the employee is assigned (if applicable), PTO or vacation and sick time accrual, deductions to pay, employer address, and telephone number – these should already be in your offer letter.  The only “new” pieces are when the first payday will be, any allowances (like meals and lodging), and an offer to put the offer letter in a different language if needed.

Third, when employers roll out new policies, you need employees to acknowledge them.  Prior to the new law, employers could roll out new policies without employee acknowledgements.  Now you need them.  To avoid piecemeal acknowledgements, it may be best to review your handbook annually and when updates are necessary, require employees to acknowledge the changes all at the same time once per year.  More frequent changes are going to require more frequent acknowledgements.  This could be a bit of a pain to both do and track.

Fourth, when you change wages, employees need to acknowledge those changes too.  For example, if Jimmy is going to get a raise, you give him a writing (email, letter, performance review) that his wages are increasing and have him acknowledge the increase.  Again, most employers already do this, but now it is mandated by law.

That’s it!  The Wage Theft Law looks like it could be hard to comply with.  But, in reality, it is not as big of a deal as it has been made out to be.  Take a deep breath, you got this.

 

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