Avoiding the “F” Word
When business owners call to discuss the possibility of firing an employee, they want me to know how troubling this act feels to them. And how hard they’ve tried to avoid the very situation they are calling about. And how much they hope I can respond with a quick answer that skirts any legal liability for the company but allows the owner to feel better about what he or she knows is necessary.
Only later do I learn that the termination never happened. The “f” word (for “fired”) was never uttered. The business owner decided to “keep trying”; that is, to find a way to save the employee’s job, even when everyone—including the employee—knows it’s futile.
The indignity of losing a job, along with the primal fear that you won’t be able to support yourself or your family, lies at the core of every employment termination. An individual’s pride and sense of self-worth are inextricably bound up with our notion of what the job means to the person. The job, we assume, means a lot. Thus taking it away, as the decision-maker contemplates, is shame-inducing—not only to the job-holder, but often to the one doing the firing.
When a boss or manager thinks about the act of firing, she envisions a painful dialogue that she hopes won’t last too long. Someone has to deliver the grim news, and although the recipient may not be totally surprised, the messenger realistically expects anger, denial, pushback, and possibly tears. While the president of the United States has fired people on Twitter, most bosses feel that a face-to-face dialogue is both necessary and proper. And that’s the image that often prevents the termination from happening at all: the sheer pain of telling someone they’ve lost their job.
Notice the image of a “dialogue”: The exit is announced in a meeting between two people, with a possible third party present, maybe from human resources. In fact, there are many other people nearby; they just aren’t visible. They are back in their cubicles, attending to business.
These are the colleagues of the worker who is not working out. Those co-workers have been whispering, wondering, and complaining for months (sometimes years) why it’s their job to cover for someone whose performance is blatantly subpar. They assume, correctly, that the errant job-holder has been warned, likely several times. They’ve stopped taking bets on how long the poor performer will last. Rather, the speculation now hovers around a fear that the bad worker must definitely “have something” on the boss or the company—or why else would that person still have a job?
One question that potential jurors always answer “yes” to in an employment law trial (assuming the judge allows the lawyers to examine, or “voir dire,” the prospective panel before a jury is seated) is this: “Have you ever had a co-worker who was a poor performer or didn’t work as hard as you did?” Non-retired citizens on jury duty must temporarily vacate their jobs to serve the public interest. They are acutely sensitive to the concept of acceptable work performance and attendance. If chosen for an employment-law trial, jurors (along with the presiding judge) will likely be asked to determine other factors surrounding the firing, such as alleged gender discrimination or a whistleblower allegation.
But at the heart of the action, whether in a courtroom or a boardroom, lies the question of whether the fired employee was doing his or her job. It’s that simple.
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Minnesota is an “at-will” state. The legal meaning of at-will employment unquestionably strikes many as draconian: You can be fired for any reason, or no reason at all, absent a discriminatory reason (or a contract). The best plaintiff’s lawyers would agree that there is still a standard of “fairness” assumed in the law, and employees would clearly prefer to work in a company that values that standard. As long as it applies to everyone.
Delaying termination of someone who needs to go is a disservice to other employees who are competent.
Delaying termination of someone who needs to go is a disservice to other employees who are competent and play by the rules. Telling yourself that you’re giving a documented poor performer “one more chance” because you do not want to be seen as unfair, hasty, or unwise is a ruse.
You’re not leading or inspiring anyone, least of all the employee you’re afraid to fire. It’s true the fired employee will never thank you, and he might threaten to sue you. But what you can salvage from this tough decision is a clearer understanding of the kind of employee you want to hire and keep, the kind who will, in fact, save your hide.
Linda L. Holstein is a Minneapolis writer, trial lawyer, and veteran employment law attorney with her own law firm, Holstein Law Group. She helps businesses and individuals with workplace issues, including MSP Communications.