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You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal with three common cases

Author: Shabnam Mogharabi Date: Nov. 1, 2004 From: Pool & Spa News (Vol. 43, Issue 22) Publisher: Hanley-Wood, Inc. Document Type: Article Length: 1,950 words

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Approximately five years ago, Tom Driscoll learned a $15,000 lesson. The president of Cabana Pools Aquatech in Houston discovered that an employee, who had only been with his company for six weeks, lied to him. When he fired the individual, words were exchanged, tempers flared and Driscoll soon found himself facing a lawsuit that asked for $100,000 in damages.

"Our insurance company wanted to offer him a settlement, which I absolutely refused to do," says Driscoll, whose business employs about 18 people. "It didn't even go to court because I received a summary judgment. But it [still] cost $15,000 to defend myself."

Since then, Driscoll is careful to follow strict protocol if he's concerned about an employee, even if the person has been with the company many years. "They get three written warnings they must sign," he says. "There's disciplinary action, too. And when I've had to let someone go, I make it short and sweet."

This cut-and-dried technique may work well for Driscoll and real estate mogul Donald Trump, whose use of the phrase "You're fired!" has been popularized on TV's hit reality show "The Apprentice." However, for many supervisors and managers, uttering those words can be as troubling as hearing them--particularly if the employee has been with a company five years or longer.

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6/2/2021 You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal with three common c. ._ In fact, lawyers say one of the most common legal situations arising in the workplace involves the firing of long-term employees. Here, Pool & Spa News explores three common scenarios involving problems caused by employees of tenure. In this special report, human resources experts offer surefire ways to circumvent or, if need be, survive a difficult termination.

Scenario I: Joe has been working for a pool service company for approximately 10 years. He has been promoted numerous times, based on seniority. Though he has broad industry knowledge and is a loyal employee, Joe is unresponsive to customers and often unproductive, missing deadlines and appointments.

To avoid Joe's situation in the future, many experts recommend changing the internal advancement guidelines. They say individuals, regardless of how long they've served their time, shouldn't move up without cause. "The policy should be modified to allow for promotion based on seniority and merit," says Rebecca R. Hastings, information center manager at the Society for Human Resource Management in Alexandria, Va.

"Firing someone with a history of steady promotions would be risky in the absence of any documentation to support the decision," Hastings continues. "The organization should first 'draw a line in the sand' and make it clear that everyone is going to be held to certain new performance expectations."

Keeping Joe on board

Capitalizing on a long-term employee's skills rather than putting them in positions that magnify their weaknesses is key to avoiding situations such as Joe's. A person with obvious industry know-how might be of better use in a marketing role. In many cases, however, continued poor performance is an indication of bigger problems.

Cutting the ties

That's when it is time to gear up with a clear-cut, three-prong strategy, says Paul Falcone, a Los Angeles-based human resources executive. He suggests implementing the following steps:

Engage in a "perception" conversation.

The employer must make his or her perception of Joe's lackluster work immediately known. Talk about what's causing the concern and the pressing need for a solution.

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6/2/2021 You're fired! Terminating an employee, especially a long-term one, can be

fraught with difficulties. Here's how to deal with three common c-.

* Use progressive discipline.

Give the long-ternl employee at least three notices citing his or her inappropriate conduct or lack of productivity. These written warnings must be signed by the employee. Point out the person's weaknesses, your expectations of improvement and the disciplinary measures that can result from not shaping up.

* Offer training.

Telling a long-term employee to improve without providing options to achieve this goal is frowned upon by many courts. If Joe refuses training or assistance, document his reluctance as well.

Scenario II: Jill is a smart and capable, six-year employee at a pool-building company. Earlier this year, the management team shifted its vision and began focusing on the high-end market. Jill has resisted the changes from the beginning and her dislike for the new strategy is starting to affect her work.

Jill's case may be more indicative of a layoff, says Falcone, who also wrote The Hiring and Firing Question and Answer Book. "The litmus test for a layoff is, 'Do you have a legitimate business reason to let so-and-so go?' If so, then ifs just that the company has shifted its vision and her skills may not fit," Falcone says. Offering Jill a severance package that may include partial health coverage for a certain time period or good references can help her accept the downsizing and move on painlessly.

Keeping Jill on board

Jill may not be purposely making the change difficult. Instead, her behavior could signal that the new policy is confusing, Hastings says. Offering a venue for anonymous feedback on the new plan, or giving employees additional information about the reasons for the shift, might help ease Jill's concerns.

"It affects the synergy of the company when one person's not getting on board," says Cliff Malzman, president of Cannon Recreation Corp., a builder of vinyl-liner and aboveground pools based in Syracuse, N.Y.

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6/2/2021 You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal with three common c. . .

* American Arbitration Association, www.adr.org

* American Bar Association, www.abanet.org.

* Society for Human Resource Management, www.shrm.org.

* U.S. Equal Employment Opportunity Commission, www.eeoc.gov.--S.M.

Faced with a lawsuit? Don't panic.

Job bias litigation is becoming more and more common. Wrongful termination and discrimination lawsuits filed in

U.S. District Courts soared from 6,936 in 1990 to 21,450 in 1998, according to a report from the U.S. Department of Justice's statistics bureau in January 2000.

This type of litigation can be costly and troubling for a company. Many lawsuits can take years to see a courtroom and even longer to reach a verdict. That's why many businesses choose to settle cases through their insurance companies.

"Litigation can be costly," says Andrea Woods, assistant city attorney for the city of Little Rock, Ark. "The employer and employee have to evaluate on a cost-benefit analysis how far they want to go."

Despite legal fees of up to $60,000 to prepare for the start of a trial, many companies opt not to settle. They want to send a message that they behaved appropriately. If that's the case, here are three things to keep in mind when fighting a wrongful termination or discrimination lawsuit:

1 Start rounding up the paperwork.

If served with a lawsuit, get your documentation in order. This includes performance reviews, personnel documents, signed warnings, notes from meetings and a-mails related to the employee who is suing your company.

"You may need the documents to jog your memory," says Woods, who has a background in human resources and often handles tabor contracts, wrongful termination and other employment lawsuits.

2 Designate a litigation team.

Many firms aren't prepared for lawsuits and don't think about them until the papers are served. "At that point, you want to get an expertise that will be helpful; a couple of heads are always better than one," says Joan E. Moore, president of Arbor Consulting Group Inc., a Detroit firm.

The team may consist of the former employee's immediate supervisor, your company's human resources manager or an external human resources consultant. It may also include a lawyer specializing in employment issues.

3 Consider using alternative dispute resolution.

If you choose to avoid a jury trial situation, alternative dispute resolution is another option. It uses noncourtroom solutions such as mediation and arbitration to resolve legal matters.

"Mediation can often be more helpful than bringing a lawsuit because you get to talk and hear both sides," says Barbara Kate Repa, author of six books about the workplace, who often serves as a labor-dispute mediator.

"It's becoming more common to have mediation included in employee handbooks [as an option.] Then you just need to have two willing parties," Repa continues. "They're much less costly and much quicker. I had one that was successfully resolved in 20 minutes."--S.M.

Mogharabi, Shabnam

Copyright: COPYRIGHT 2004 Hanley-Wood, Inc. Source Citation

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6/2/2021 You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal , ee-cocnmo`...

"She's productive and a revenue producer, Malzman adds. So we would n3 to keep her. ' ' —

Cutting the ties

If it got to the point where warnings and disciplinary actions failed to solve Jill's problems, Malzman would then consult a lawyer or human resources firm to help finalize his decision. "It's a much more formal environment in 2004 toward the way you treat your employees because we live in such a litigious society," Malzman says.

"Certain decisions are based on the downside risk and fear of labor litigation," he adds. That's partly because some employers may be faced with a defamation lawsuit if they fire capable individuals such as Jill. (For more on how to address a lawsuit, see sidebar on page 154.)

Experts say these suits often arise when an employer tells the staff too much about why a co-worker was let go, possibly harming the former employee's reputation. In other cases, telling co-workers too little can lead to rumors and fears that more terminations may follow.

To avoid these situations, it's important to send a brief companywide memo or e-mail as soon as the termination takes place. Most human resources executives recommend using simple language such as the following: "As of today, Jill no longer works for our company. We wish her well. In the meantime, please direct any inquires about Jill or her responsibilities to so-and-so."

Scenario III: Jack is an executive who has served his company for 22 years and is near retirement. However, Jack's personality is abrasive. He is degrading to co-workers, disruptive at meetings and tells jokes that make your increasingly diverse staff uncomfortable. Supervisors have spoken with Jack, but he still continues the behavior.

A cautionary note concerning Jack: Be careful. By allowing his behavior to continue for so many years, you are opening your company to allegations of age discrimination based on your response to his conduct.

"It used to be that workplaces were more tolerant of what they called these 'endearing personality quirks," says Barbara Kate Repa, a San Francisco labor-dispute mediator and author of Firing Without Fear: A Legal Guide for Conscientious Employers. "But these days, there's a more sensitized workplace."

Keeping Jack on board

Have a one-on-one conversation with Jack, suggests Cabana Pools' Driscoll. "Someone who's worked with me that long, I'd sit down and have a talk with him," he says. "You've got to pull him aside and tell him, 'Straighten up! We love you, we want to take care of you, but you're being offensive. You're causing disruption."

At this point, Jack might be a good candidate for individualized training, such as sensitivity and awareness seminars. "He might not go willingly," Repa says. "But as an employer, you've protected yourself and given him the chance to improve his behavior."

Cutting the ties

If Jack's behavior doesn't change, it's time to begin progressive discipline. That's when you implement workplace due process, writing up warnings and issuing other penalties for poor behavior.

During this period, never bring age up as a reason for the discipline. "Managers will say things like, 'You've gotten too old for the job and we want to bring in someone new,' or they make other age-related remarks," says Joan E. Moore, president of Arbor Consulting Group Inc., a Detroit. based human resources consulting firm.

In the aftermath of a termination--once the desk is cleared out and co-workers are informed--many experts recommend that a firm conduct an exit interview. "Sometimes you can learn more about the company (tom people going than coming," says Malzman of Cannon Recreation. "When someone's leaving, they feel free to say things they wouldn't normally say."

Labor-related resources

To get more information about human resource management, workplace laws, labor-related lawsuits and proper termination procedures, visit the following Web sites:

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6/2/2021 You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal with three common c. . .

Mogharabi, Shabnam. "You're fired! Terminating an employee, especially a long-term one, can be fraught with difficulties. Here's how to deal with three common cases." Pool & Spa News, vol. 43, no. 22, 1 Nov. 2004, p. 145+. Gale General OneFrle, link.gale.com/apps/doc/A124697848/ITOF?u=oran95108&sid=bookmark- ITOF&xid=l7bdd4f7. Accessed 2 June 2021.

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