How to Handle Your Toughest Employee Problem

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It’s a dreadful responsibility, but almost every business owner and manager eventually comes face-to-face with terminating one or more employees.

 “Firing people is one of the toughest, most unpleasant things you do as an employer,” said author James Walsh in his book, “Rightful Termination.” “Your stomach tightens and your throat gets dry as you prepare to call someone in for the meeting that begins with, ‘There’s no easy way for me to do this.’”

As difficult as the task may be, fiscal reality sometimes makes employee layoffs unavoidable. When your payroll ratio climbs to unacceptable levels, or when an individual employee’s performance is unacceptable, it’s best to take appropriate action.

“Many owners and managers delay layoffs out of concern for their employees,” said Kerim Fidel, General Counsel for Strategic Outsourcing, Inc., a professional employer organization, based in Charlotte, North Carolina. “This may result in deferring layoffs beyond an economically rational point.” 

Don’t make a hard situation more difficult by going into it unprepared.

“Some of our clients facing the troubling possibility of employee layoffs have sought our advice and guidance in how to navigate a workforce reduction while avoiding potential legal pitfalls,” said Sandra Dickerson, president of Your People Professionals in Santa Maria, California. “Each situation is unique, but if the employer follows some basic steps many problems can be avoided.”

First, assess the situation.

“Carefully consider whether there might be viable alternatives to a layoff. Perhaps you can find other cost-cutting measures that will let you preserve your major investment in your employees. Consider the long-term costs of replacing your talent investment when the economy picks up and satisfactory workers are again in short supply,” Dickerson said.

Fidel agreed.

“While layoffs are seen as a cost-cutting measure, there are significant costs associated with them,” he said. “These include potential increases in unemployment contribution rates, severance pay and exposure to layoff-related legal action. Soft costs include loss of confidence among customers and remaining employees and forcing talented employees to find work elsewhere — possibly with your competitors.”

Still, there are times when layoffs are the only practical alternative.

“When that happens, you must follow the most objective and uniform selection criteria possible,” Dickerson said. “Be careful to ensure the layoffs will not have a disproportionate effect on employees in a protected class. Protected classes include minorities, women, older workers and the disabled.”

Dickerson also cautioned against using layoffs as an opportunity to eliminate difficult or disliked employees.

“That’s the wrong approach if you want to avoid legal challenges,” she said. “Remember, unlike a termination for cause, a layoff is the elimination of a position, not a particular employee. Focus on the skills you will need to keep your lube business viable, and be sure to document the criteria you use to decide who stays and who goes. The size of your business may also subject you to legal notice requirements. Before you make layoff announcements, seek professional advice if you have more than a few employees.

“Lastly, be sensitive and make every effort to protect employee privacy and dignity throughout the layoff process. Be prepared to address the increased stress levels of your remaining employees who may be assuming added responsibilities and facing their own uncertainties about what the future holds.”

Today, with the increasing risk of costly legal complications when discharging an employee — even for purely business reasons — it’s important you keep yourself aware of the legal pitfalls surrounding that task.

Every year, thousands of employers, from the largest to the smallest, are being hauled into court by former employees claiming they were fired illegally. Many of those employees are winning substantial judgments against their former bosses.

“It costs nothing for an employee to file a charge with the EEOC or state fair employment practices agency,” cautioned attorney James P. McElligott, Jr., of McGuireWoods, LLP, in Richmond, Virginia. “State and federal agencies can investigate employers for retaliation charges based on OSHA, wage and hour, environmental, FMLA or other violations. In addition to expensive legal fees, employers often must spend hours trying to reconstruct and justify their actions. So do it right the first time.”

What you need to be especially sensitive to is the risk of lawsuits based on some form of discrimination.

“Every employee has a race, gender and religion,” said attorney Beth Schroeder, of Silver & Freedman, in Los Angeles, California. “So, every employee — even new and probationary ones — falls into at least one so-called ‘protected’ class.” 

Here are a few suggestions to help you avoid the nightmare of a wrongful termination lawsuit:

1. Keep Lines of Communication Open

Many wrongful termination lawsuits have their roots in a misunderstanding on the part of the employee. Often, that misunderstanding involves the reason for the termination.

“Many employers are under the impression that the less [in the loop] an employee is about the termination, the better. My 18 years of experience in both counseling employers and defending lawsuits suggests otherwise,” Schroeder said. “The more an employee understands about where he or she stands and the reason for the employer's actions, the less angry, frustrated and suspicious the employee is likely to become. Anger, frustration and suspicion drive terminated employees to attorneys.”

Layoffs due solely to poor business conditions aren’t likely to be the cause of legal problems. However, it’s critically important the employee is made aware of the fact that his or her job loss was not a result of his or her performance.

2. Put It in Writing

Labor experts agree, that careful documentation is an essential part of every employee termination — especially a termination for cause. Incidents or behavior leading up to termination for a reason should be recorded at the time of the incident or as soon thereafter as possible. The documents should be respectful of the employee, but detailed. They should list events or issues in a logical or chronological order.

“At the very least, put the reason for the termination in writing,” Schroeder said. “The employee is likely to be emotional, upset and may not hear what you said in the termination interview. If the terminated employee goes to a lawyer, the lawyer will hear the story in the employee’s words and will decide whether to take the case based on the employee’s description. In that case, the attorney may not hear your side of the story until after a lawsuit has been filed.”

3. Be Careful of “Constructive” Discharges

The courts sometimes rule an employee was indirectly fired, known legally as a “constructive” discharge. This can happen if the employer creates a hostile or abusive work environment, places unreasonable demands on the employee or issues a “quit or be fired” ultimatum.

If a constructive discharge is ruled, the employer’s responsibilities will be the same as for a direct firing. 

4. Conduct Regular Employee Evaluations

Under the law, your employees are entitled to be kept informed of how well they are meeting your expectations. Your failure to meet this requirement may not be of any consequence unless a terminated employee files a lawsuit that claims you made no attempt to inform him or her of your dissatisfaction.

Your evaluations do not have to be elaborate or follow any specific format, but it’s always best if you put them in writing, even if it’s only a short paragraph or two.

McElligott advised, “Your employees are entitled to know whether or not their performance meets your expectations. In this regard, it helps to make a written record, for future reference if the need arises. Always be consistent in evaluating and disciplining your employees, and be sure to review previous evaluations and disciplinary actions if any has taken place.”

Many human resources professionals recommend you allow employees to review their written evaluations. Then, ask them to initial the document. If the employee declines, you should indicate that on the record.

5. Deal Promptly with Performance Problems

Because the task can be so unpleasant, many shop owners find reasons to delay firing a problem employee. It’s easy to delay the inevitable by saying things like, “Perhaps the employee will improve. Perhaps I’m being too hasty. Perhaps living with the problem is the lesser of two evils.”

If you’ve done a good job of following the above guidelines and are confident a termination is justified, delaying the action is probably not in your best interest.  

“Not firing a problem worker is often the worst thing you can do,” Walsh said. “It keeps the problem worker around to create more trouble, making a bad situation worse. That’s not fair to you or to your other employees.”

McElligott goes further.

“Don't procrastinate or wait for the next evaluation,” he said. “Do it now!”

Employee layoffs — even those that are the direct result of poor business conditions — hold the potential for both legal and morale problems. Following these ground rules will help to lessen the chances for costly complications.  

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