Other than Donald Trump, you won't find anybody who enjoys firing people.
In fact, sometimes the person doing the firing is more uncomfortable than the person being fired.
Employers realize that one of the most dangerous things they can do is end someone's employment. Many of us think of our job as a reflection of our value to society.
Of course, it's not true, but when you lose a job for any reason, there is a tendency to feel attacked. Often, the employee's first question when they leave the building is: “Who can I sue?”
Reading the news, it can seem as though there is a one-to-one ratio between final paychecks and employment lawsuits.
When the economy is bad, it provides a good explanation for letting people go, even when there are other reasons. But it also means more people are being let go, and jobs are harder to come by, so employers may be more vulnerable to legal action.
Of course, it can be equally dangerous to keep an employee that you know in your heart should be fired. I've often had a new client tell me about their problem with an employee and end with the phrase: “I should have fired him long ago.”
So what's an employer to do?
First, take heart. Most terminations don't result in lawsuits. Most people realize that losing a job doesn't necessarily mean someone is right and someone is wrong. People change, companies change and someone who was a good fit three, four or even 20 years ago, may not be in the right job now. If the employee realizes it first, she gets another job. Otherwise, she may be let go.
After the dust settles, people often realize that it's not worth the time and energy, and they focus on new opportunities. Those who can't let go still have to find a lawyer willing to take their case, and despite what you may hear, competent lawyers don't like to waste their time on a case that has no merit.
There also are some simple things an employer can do to try to minimize the risk of being sued, including:
• Be clear about the reasons for ending someone's employment. If it's the economy, say so, but if there were performance issues, you should have been pointing them out all along, and termination should be a clear consequence of the employee's failure to meet the employer's requirements.
• When you are downsizing, be sure you're not using an unlawful reason to select certain people for termination. Discrimination is unlawful even if you have other reasons to fire at the same time. A court need only find that the illegal reason, discrimination, retaliation, and etc., was a “substantial contributing cause” of the termination for you to be liable.
• If you can, offer severance pay in exchange for a release of claims. A properly crafted release (call your attorney, don't trust Web sites offering employment release forms) can protect against most, though not all, claims. You should already have a written policy that says all employees are “at will” and the company normally doesn't pay severance.
• If you think you have a problem termination, call an experienced employment attorney for help through the process. Of course, it's no guarantee that you won't be sued, but you should be able to minimize your risk and prepare for a good defense at the same time.
In fact, sometimes the person doing the firing is more uncomfortable than the person being fired.
Employers realize that one of the most dangerous things they can do is end someone's employment. Many of us think of our job as a reflection of our value to society.
Of course, it's not true, but when you lose a job for any reason, there is a tendency to feel attacked. Often, the employee's first question when they leave the building is: “Who can I sue?”
Reading the news, it can seem as though there is a one-to-one ratio between final paychecks and employment lawsuits.
When the economy is bad, it provides a good explanation for letting people go, even when there are other reasons. But it also means more people are being let go, and jobs are harder to come by, so employers may be more vulnerable to legal action.
Of course, it can be equally dangerous to keep an employee that you know in your heart should be fired. I've often had a new client tell me about their problem with an employee and end with the phrase: “I should have fired him long ago.”
So what's an employer to do?
First, take heart. Most terminations don't result in lawsuits. Most people realize that losing a job doesn't necessarily mean someone is right and someone is wrong. People change, companies change and someone who was a good fit three, four or even 20 years ago, may not be in the right job now. If the employee realizes it first, she gets another job. Otherwise, she may be let go.
After the dust settles, people often realize that it's not worth the time and energy, and they focus on new opportunities. Those who can't let go still have to find a lawyer willing to take their case, and despite what you may hear, competent lawyers don't like to waste their time on a case that has no merit.
There also are some simple things an employer can do to try to minimize the risk of being sued, including:
• Be clear about the reasons for ending someone's employment. If it's the economy, say so, but if there were performance issues, you should have been pointing them out all along, and termination should be a clear consequence of the employee's failure to meet the employer's requirements.
• When you are downsizing, be sure you're not using an unlawful reason to select certain people for termination. Discrimination is unlawful even if you have other reasons to fire at the same time. A court need only find that the illegal reason, discrimination, retaliation, and etc., was a “substantial contributing cause” of the termination for you to be liable.
• If you can, offer severance pay in exchange for a release of claims. A properly crafted release (call your attorney, don't trust Web sites offering employment release forms) can protect against most, though not all, claims. You should already have a written policy that says all employees are “at will” and the company normally doesn't pay severance.
• If you think you have a problem termination, call an experienced employment attorney for help through the process. Of course, it's no guarantee that you won't be sued, but you should be able to minimize your risk and prepare for a good defense at the same time.