The toughest decision that lawyers, in-house or otherwise, help clients make is whether to impose the employment-law equivalent of capital punishment: termination of an employee. While clients look to attorneys for counsel, sometimes they really want us to make the decision — for that cup to pass from them. Here are five questions to ask to ensure the decision is the right one at the right time.
No. 1: Is it a game of “gotcha” at work? Difficult employees are everywhere. Perhaps they should be terminated. But sometimes problem employees are terminated for minor or trivial reasons. So, when operations comes to the lawyer and says, “Now, we finally have a reason to get rid of this employee,” counsel needs to put the brakes on the decision-making train.
Why? The manager may not be terminating the employee for a good reason. Rather, the manager’s statement suggests that he may have a problem employee but he has not bothered to counsel him adequately on his performance. The manager conveniently sees a minor infraction as a way to make an end run around the task of laying the proper groundwork for a clean termination.
No. 2: Is there a rush to judgment? There are things you know and things you only think you know. A lawyer at another firm told me about a case in which his client concluded that an employee with a checkered past — let’s call him John — was a thief. When I asked why, he said that the client had a telephone conversation (not an eye-to-eye meeting) with someone — let’s call her Jane — who blamed John for a theft. But it turns out that Jane had been terminated under suspicious circumstances and may have borne a grudge against John.
The lawyer really didn’t know John was a thief. But the belief fit a preconceived view, and that was that. Here is a gut-check question: What solid and verifiable facts are there to support the belief that the employee (fill in the blank on the purported misconduct)? If the lawyer can’t answer the question, then hit the stop button on termination.
No. 3: Is tunnel vision developing? Remember reading “Les Miserables” in high school? Inspector Javert was the detective who obsessively went after Jean Valjean. Or, more recently, the movie “The Fugitive” depicted Deputy Marshal Sam Gerard (played by Tommy Lee Jones) chasing Dr. Richard Kimble (played by Harrison Ford). Kimble yelled out, “I didn’t kill my wife,” to which Gerard famously replies, “I don’t care.”
While entertaining in fiction and film, tunnel vision is devastating in the workplace when making a termination decision. Here are the danger signs:
• focusing on the employee under investigation without looking at any contextual facts;
• laying all the blame for a problem on a particular employee without considering whether other employees also should be held accountable;
• deciding before hearing all the facts that the employee is guilty as charged; or
• failing to ask whether the subject employee was properly trained for his job, or whether the company had any checks or balances in place to prevent the employee’s error.
No. 4: Is termination a proportionate response? This is the most important question to ask. In legalese: Is termination imposed on the employee related to
1. seriousness of the proven offense;
2. the employee’s past record; and
3. his length of service? Here is the English version: Does the punishment fit the offense?
How do we decide this? Ask: Are there are mitigating factors? Is the conduct an aberration? Does the employee express true remorse and indicate that the conduct won’t re-occur? If the answers are “yes,” then exercise what I call “proportionate compassion” and do not terminate.
Of course, there are offenses for which an employee should be terminated: no second chance, no write-ups, no counseling. These decisions are usually conduct-based as opposed to performance-based. If an employee, after a review, says, “I don’t care. I will continue to do what I want,” it’s game over.
My mother taught me that “people never change, they only reveal themselves.” Sad, but true. Or, as Oprah Winfrey put it, “When people show you who they are, believe them.” When they do, the decision makes itself.
No. 5: Are the managers hesitant to terminate? Why? Sometimes managers are not hell-bent on firing an employee but rather on keeping him despite misconduct or performance issues. Why, you ask? For the all too human reason that the employee is the star of the sales department or would be too hard to replace.
These are not good reasons to spike an otherwise righteous termination decision. They are examples of unethical conduct by a manager: putting his needs ahead of the needs of the organization and its greater good. As a client told me: “If I ever find myself in that situation then the employee owns my company, not me.”
Most people want to make the right decision as well as the moral one. The two are not mutually exclusive. Ask these questions and the decision will proceed from “ready, aim, fire” (doing the right thing), not from “fire, ready, aim,” which leads to something else all together.
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