Does ‘Employment At Will’ still really exist?
So you’ve reached the end of the road with an employee, they aren’t pulling they weight and they have to go, but you don’t know how to fire someone. Moreover, they happen to be a member of a protected class and you’re panicking over the potential blow back from any action you take against them.
What do you do?!
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So how to fire someone…it’s a daunting prospect!
I know that, as an employer, it can often feel like people see you as a tyrant. Sitting behind your desk, just itching to drop the hammer on anyone who steps out of line. I know…nothing could be further from the truth!
The fact is we employ people to help us out! We need our employees to make the cogs turn and the engine run. Not only that, but the process of hiring someone new is fraught with peril, stress and expense. We don’t want to fire anybody, just as we don’t want anybody to quit.
It’s a fact of life though, that we will have people working in our organisation who, for whatever reason, cease to be a good fit. You may have come to the end of the line with them after disciplinary proceedings, performance management processes and fair warning after fair warning: or not.
Now it’s true that, as head of a company; you can take whatever action you want. Don’t like the look of somebody’s shoes – you can fire them on the spot! You would of course expect to face some form of litigious backlash though.
If, however, you’d repeatedly told said shoe wearer that they needed to wear more appropriate footwear, that was in alignment with your company rules on attire – but despite repeated, documented warnings to that effect: they hadn’t…you could rest easy.
So given the ‘hoops’ that you have to jump through, settlements you have to pay and risk of litigation hiding around every decision making corner:
Does the “Employment at Will” doctrine really still apply anymore?
Well yes, in principal. In law: an employer can release and employee at any time. ‘In law’ though. It has to be for a legal reason. An employee can also leave at any time without notice, putting you under immense pressure to recruit and fill the position as soon as possible, while remaining competitive.
These things are never as simple as the guidance would suggest. Odds are that most terminations will be messy for you. If you are thinking of terminating someone and you don’t have all your ducks in a row in terms of documentation, here’s our advice…
Don’t give a reason for the termination!
Yep, you read me right: do not give a reason for the termination. Why? Because if you do, you will have to defend and stand by that reason. You have immediately painted yourself into a legal corner, and your ex-employee can challenge your decision and you will have to provide proof, in court, for your actions. Moreover: you don’t know what documentation your ex-employee has gathered themselves, that you could be forced to confront and waste time and resources rebutting.
This is why, in most cases where a reason is given for a termination: both parties end up settling out of court. So if you are going to give one, be damn sure that you have all the legal documents and proof that you need, to support your decision.
How to fire someone from a protected class
OK – for absolute clarity… DISCLAIMER: I am not, nor will I ever advise that firing someone from a protected class, because they are a member of that class, is ever justified. Period.
Title 7 protects people from being fired because of discrimination against them based on belonging to a social group, class or race. Rightly so. Equitable treatment in the workplace, and indeed throughout society, is a fundamental human right that we should all be afforded.
Remember though that equitable treatment is a shield, not a sword.
It is there to protect, not attack. Title 7 was put in place to defend employees from minority or protected classes, who were facing discrimination at the time on a pretty wide-spread level. To this day, I believe it to be a very valuable piece of legislation that continues to offer protection.
I’ve had a lot of clients come to me asking for help because they want to let someone go, but because they are a member of a protected class; they fear being accused of bigotry. I get that. Nobody wants to be labelled with that and indeed, where employers are found guilty of malpractice in this area; the repercussions can be devastating.
As long as you’ve adhered to the guidance that I outlined above and you have a good reason for letting them go, you don’t have to worry. But don’t start with “they’re a member of a protected class, so I can’t fire them.” Instead just focus on their performance, as you would with anyone else. There aren’t really any extra steps that you have to take with people from protected classes, as long as you document the process and can demonstrate where their performance was inadequate.
You can do whatever you want when it comes to how to fire someone – it’s your company…but how many zeros do you want to put on that check?
Like I said – taking undocumented action will tend to result in:
- Losses in settlement/severance agreements
- Damage to your brand publicly & internally
- You will cause an employee relations issue
- It’s incredibly stressful!
The secret to how to fire someone: documentation! Policies, procedures and performance management. No – it’s not sexy, but having and following these guidelines ensures clarity for all concerned. It also serves as a bulwark between heated, knee-jerk decision making and calmer heads prevailing.
What we’re really talking about here, let’s be honest, are performance related terminations. If someone steals something or commits an act of vandalism (for example) you will likely have all the proof you need, in order to terminate that employee. If they stop showing up for work: you’ll also have clear grounds to terminate.
The grey area that leaves itself open to subjective interpretation, is performance management. Unless, of course, you have very clear guidance and procedures that are known to everyone!
If you have a good management team, who can implement the best training and monitor performance adequately: you should rarely run into a situation that requires termination!
Be clear with your employees. As with so much: this boils down to communication. We always advise that you provide a handbook to your staff, outlining the policies and procedures that they should follow. Again: not sexy, but it keeps the onus on them to follow it or show why they shouldn’t.
It is always way more preferable to point to a breach of policy, than have to personally defend a decision made seemingly arbitrarily. For everyone’s sake! Yes: you avoid the spotlight personally, but also your staff all know where they stand and will be less likely to see you as the afore mentioned tyrant, filled with capricious whim and a grudge against them personally.
If you would like help putting together a handbook, that details clearly what guidance your employees should follow; please reach out to us here at ADDA Infusion. We have years of experience putting these together and will be happy to help.
My advice is to always document, communicate and seek to resolve issues – before going down the termination route.
If you haven’t done that, don’t have evidence but they simply have to go: I’d recommend reaching a severance agreement with them. It’s the best way to ensure that everyone walks away from the situation without recourse.
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For more on this, please check out Adam Daines, CEO of ADDA Infusion, and his video on the subject below”
