Labor / Employment, On The Job

Definitely The Wrong Way To Fire Someone

And three tips on how to fire someone the right way.

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Hint: not by post-it note.

Hint: not by post-it note.

As a young associate at a big firm, I had a sizable class of recent graduates who were my “year.” We would often go to lunch, or meet for drinks and dinner. And we would compare notes about who was working on what. In addition to hardest-working associate honor (for which there was much competition), people also talked about the most interesting things they were working on. Though the environmental lawyer was often a close second, I always won with the facts of my cases. And these cases were always terminations that went wrong. There simply isn’t another area of law with more salacious facts that happen in “professional” settings. Two parties fighting about a contract is never as interesting, even if one of the two parties is famous. Furthermore, even an employer with the best intentions gets terminations very wrong sometimes.

Recently, the Southern District of New York court decided to deny summary judgment in a case with a virtually undisputed salacious tale that went very wrong for the employer. It all started with a female employee’s meeting with the president of her company in a sheer shirt without a bra. I’m taking a little liberty with the facts, but given what the Court found was “undisputed,” Mr. President must have claimed to have seen everything. And he saw and told (someone). Who told someone. Until everyone at the company knew. And of course, people talked about it. Plaintiff’s female co-workers and subordinates really talked about it. In fact, the talk got so bad Plaintiff went to complain about the talking.

Here is where things went wrong: she was shortly thereafter fired, not because of the incident, but because of the “drama” that surrounded it.

If you are wondering if going braless for a meeting with the president of the company is some protected class you never heard of, let me assure you it isn’t. Instead, the termination looked like retaliation for an employee complaining about treatment at work. The opinion reads: it is clear that [Plaintiff’s] action is not the type with which the relevant discrimination statutes are most concerned.

But the claim survived summary judgment, and it is very likely that this employer will pay a significant sum to make this all go away. Because Plaintiff was fired (in part) for complaining about how she was treated. Instead of the employer doing something about the complaint, they fired the Plaintiff.

Which brings me to my point: there is a right, and wrong way (and reason) to fire someone.

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Most employees are “at-will,” which means all parties can part ways for almost any reason. The trouble comes when employers provide no reason, or provide bad reasons in the face of better ones.

The average employment lawsuit is six figures from start to finish, even with one plaintiff and a single defendant, and with a good mix of issues a case can reach six figures even if you are able to resolve the case short of trial. I’m sure the suit by our sheer-shirted Plaintiff will be much more costly. If you want to avoid these types of situations at your company, and have a happier workforce, here are my tips on how to fire someone:

1. Before you fire them, have an honest discussion with them about their performance. The time for an employee to find out they have a performance problem is not at the meeting to terminate the employee. If your company is known to do this, they have had or should expect their share of lawsuits. Having hard conversations should be in the job description for a manager.

2. When the time comes to part ways, be honest about why. In the case of our sheer-shirted Plaintiff, the employer said “drama” as a reason to terminate her (and she recorded her termination meeting, so it was undisputed: “drama” was a reason for her termination). Firing her shortly after her complaint about said “drama” was not a good move by the employer. There were, however, several other reasons justifying her termination. Why not go with those? There had to be a better way.

3. Finally, be prepared to listen to the employee as well. Listening gives an employer feedback and allows the manager and the entire company to see where they also went wrong. Employee terminations are inevitable; people aren’t always going to be right about whether a job is a good fit. That’s ok. But an employer can take steps to mitigate this issue — and having honest conversations with employees about performance is a necessary start. If and when the time comes to pull the plug, both sides have something to learn from the experience. No learning will take place if all the communication is one way.

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If you are a worker bee like me, I hope you too get regular feedback from those you work with, know where you stand with your performance, and provide that same feedback to those around you. And if you ever happen to have a meeting with someone who isn’t wearing a bra, keep it to yourself.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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