Do you think managers should always get legal advice before firing someone?
That’s what many lawyers say and we all know lawyers never lie, right?
— Evil Skippy
Don’t get ahead of yourself. Before even asking if something is “legal”, ask yourself if what you want to do is smart. Too many managers focus on “Is it legal?” instead of “Is it smart?”
Don’t waste your time paying an attorney to review every termination decision. It does not take a lawyer to know when a termination is “risky”. For example, it is usually more risky to fire the employee who has said, “My lawyer says I am going to win a million bucks because you are violating the FMLA” than it is to fire the person that says “Stop telling me to be on time. You’re not the boss of me!”
By all means, perform your own risk assessment before terminating someone. If there are significant risk factors, call in the legal team for an in-depth review. Common “risk factors” include:
- The employee has recently alleged harassment, reported safety violations or filed a workers’ compensation claim. (The risk here is possible retaliation – are you retaliating against the person for engaging in lawful activity or are you imposing appropriate discipline for violations of clear company policy?)
- The employee has recently taken time off for protected family medical leave or who has been accommodated for a disability.
- You are dealing with a long-term employee with no other history of discipline. If the person has done something egregious, be cautious before firing unless you can prove that you warned him or her and also provided sufficient opportunity to turn things around before opting for termination.
If you’ve reached the point where you are considering termination, ask yourself what a jury of twelve strangers would think about your decision. Would those people think you are being fair? Or would they think you are being an ass? Whether or not your actions are “legal”, first strive for humanity. I’ve worked on cases where employers made every effort to be “legal” but nonetheless treated employees as less than human and got slapped by a jury as a result. Juries find a way to make such employers lose, even when they have been “legal”.
Here’s my rule for managers: Don’t be an ass. Supervise and hold people accountable, but be human as you do it.
Readers? What say you?
Evil Skippy and/or Jim are available to speak at your conferences and seminars! For information or to send a question for Evil Skippy to answer, use the “Contact” link on the left sidebar.