Last week's post about whether
certain employees in the news deserved to be fired, in addition to
generating some great comments from readers, got me thinking about firings in
I don't like to fire people.
And I know what you're thinking -- then why in the
world is she even an employment lawyer!?! She needs a new career! I know.
I've fired a few people myself. And, of course, termination is often the best
of several lousy options.
But, let's face it -- terminating an employee is like
invasive surgery and therefore should be a last resort. It may be the
"least bad" choice, but it's never a GOOD choice. No matter how much
you need it, it is going to cause trauma and involve serious risk. Sometimes I
find that employers are too quick to go "under the knife" without a
(Usually not HR people or lawyers -- in my experience,
it's usually their bosses.)
But, don't you make a lot more money when
employees are fired right and left?
Think about your doctor. Have you ever had a doctor tell
you, Oh, please don't lose that extra weight or quit smoking or drinking -- I like
you just the way you are! It's my job to take care of unhealthy people!
Of course not. They never say that because they don't
feel that way, even though they might indeed make more money if you stay
Believe it or not, honorable lawyers feel the same way
about their clients. Sure, we may generate more billable hours and legal fees
if you fire somebody without a good reason and end up in five years of
expensive litigation. But we actually prefer for your sake that you avoid it.
We'd rather have you running marathons and looking 45 when you're actually 60.
Figuratively speaking, of course.
So, with that introduction, here are four reasons your
employment lawyer thinks firing should be a last resort. (If you're a lawyer or
in HR, you can print a copy of this post and give it to your leadership. Hehe.)
Reason 1: Nobody's perfect. Everybody has
good points and bad points. Of course, sometimes the bad points may be of such
a nature that there is no way the person can function in your workplace, and in
those instances termination is usually the only choice. But many other times,
the person is valuable in the "good" ways, and if you terminate her
because of the ways that she's not so good, you may just be trading one set of
irritations for another. Instead, it often makes a lot more sense to let your
employees complement each others' strengths and weaknesses.
Reason 2: It's traumatic to the employee.
True confessions: I was fired once, when I was 16, from my first
"real" job (part-time at Burger King) because I took too much time
off work to hang out with my boyfriend. (I always made sure I had a substitute
to work for me, but they didn't care -- life is so unfair!) Seriously, I
am sure I deserved it, and that silly termination didn't affect me in any
material way -- my parents were still supporting me, and they made me get
another job at Arby's within a week, I think -- but it still really upset me to
Well, think about how it must feel to lose your job in
this bad economy when houses and cars and electricity and groceries, and your
kid's college, are at stake. And maybe you view your co-workers as your
"family," which a lot of people do, so you're not only facing
bankruptcy but you're also being kicked out of the "family," too. And
losing what, for most people, is a major source of their self-esteem.
Reason 3: Sometimes people can change if
they're given a chance. It's often said that people never
change. I don't buy that. Many employees can and do change if (1) they have the
desire and ability to change, (2) they understand clearly what has to change
and the consequences of not changing, (3) they are given the concrete support
they need, and (4) they are encouraged as they make their halting progress in
the right direction. I realize that #1 is a huge "if," but a lot of times
employees screw up because they don't really understand the expectations or
what is needed to accomplish them. Or they are deficient in a particular area
only because they somehow got the impression that it wasn't a big deal to the
company. If they understand the real deal, they can be fine. (Case in
point: me. After I Burger King taught me a lesson, I never played hooky from
work again.) Considering the expense and disruption of hiring and training new
employees, it's at least worth a try.
Reason 4: There's always a big cost
associated with firing an employee. Here is where I appeal
to your selfish nature. Even if you don't give a second thought to the
employee's feelings (and I know you really do), here are a few of the costs,
itemized for your convenience:
*Disruption and cost associated with recruiting, hiring,
and training a replacement.
*Unemployment compensation for terminated employee.
*If you fight on unemployment, cost and disruption
associated with that.
*Disruption and cost associated with arbitration, if you
*Possibility that arbitrator will reinstate employee with
back pay, anyway.
*Cost of severance package, if you're lucky and employee
*Cost and disruption associated with inevitable charge of
discrimination if you don't offer severance or employee refuses to take it. Or
complaint filed with the U.S. Department of Labor, or some other government
agency. Or belated workers' comp claim. Or dealing with local personal injury
lawyer who has taken employee's case.
*Disruption and expense of litigation or defense of
*Cost of settlement, if you settle.
*Cost of summary judgment prep, if you don't settle.
*Cost of trial if you don't get summary judgment.
*Potential cost if jury finds in employee's favor,
including, depending on the claim, the employee's attorneys' fees.
Now, if your employee never bothers to come to work, or
is an embezzler, or a sexual harasser, or is incompetent despite your heroic
and well-documented efforts to coach, or is "toxic," or is
insubordinate, you're probably going to have to risk these costs. But if the
employee doesn't fall into any of these clear-cut categories, think about
working with him and giving him a chance to meet your performance or behavior
standards. Who knows? He might just shape up, and you might just live happily
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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