The Ten Commandments of Firing: Part 3, Commandments VII - X

By: Alan L. Rupe

This is the final installment in my three-part series on the Ten Commandments of Firing. Before reading this post, I suggest you read Part 1, covering Commandments I – III, and Part 2, covering IV – VI.

VII. Thou shalt be able to pass the jury box test (good faith and fair dealing).

In most states, the implied covenant of good faith and fair dealing that is typical in written business contracts does not apply to employment contracts or employment relationships. As a result, employers tend to think, “I can fire an employee for no reason or any reason (regardless how minimal), if it is not illegal.” Wrong. While state and federal laws do not dictate good faith and fair dealing in the employment context, juries surely do. Without question, a “bad firing” creates a sense in the jury’s mind that the employer was not “fair” with the employee. No matter how many times the court instructs the jury that it should not substitute its judgment for that of the employer, that instruction is typically ignored by juries because of the jury’s implicit bias towards “fairness” in the workplace.

VII. Thou shalt contact an attorney the minute the ground begins to give way (or looks like it will).

An employee’s firing, particularly in circumstances involving disability or sexual harassment claims, can quickly become problematic. If, for example, an employer learns of a failure to accommodate a disabled employee during that employee’s termination, the smart move is for the employer to hit the “pause button” on the termination and conduct a quick investigation. A similar circumstance often occurs when an employee asks the employer during a termination meeting, “Am I being fired because I complained about sexual harassment?” Keep your employment lawyer’s phone number on speed dial for just those situations. There is nothing wrong with “pausing” a termination when the ground begins to give way to make certain the termination can proceed – after an investigation – on solid ground.

IX. Thou shalt remember that employee issues are usually chess games and not boxing matches.

The hardest lesson for frontline supervisors to learn is that employee issues generally take time, thoughtfulness, strategic thinking, and continued coaching and counseling. Handling poor-performing employees is not a boxing match where the employee’s performance problems are reduced to a quick three- or five-minute round. Carefully considering employee performance issues takes time. And simply rushing in to quickly terminate a problem employee does not work. There are always exceptions to the chess rule, particularly in those circumstances where there is no question concerning the employee’s poor performance or threatening conduct. But by and large, chess games prevail. Boxing matches do not.

X. Thou shalt learn from each termination.

Enough said concerning Commandment X. Learn what works and dispose of what doesn’t. What you may learn from terminating employees is that you simply don’t like to do it. Many employers dislike firing people and that is where the benefit of having your employment lawyer on speed dial comes in.

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