Trend towards conniving & dishonesty in termination noted; not a bright idea
Shirleen Holt writes in The Seattle Times (here via the St. Louis Post-Dispatch): “Seldom are heard these discouraging words: ‘You’re fired!’”
For weeks, millions of television viewers watched Donald Trump squint, purse his lips and, with a swoop of a finger, utter the catch phrase of the day: “You’re fired!” The words that punctuated each episode of “The Apprentice” reality show are unambiguous, blunt and final. They’re also largely fiction.
Fear of lawsuits has made the fantasy firing obsolete, for the most part. . . . Instead, many companies have adopted more surreptitious ways to get rid of unwanted employees. Human-resources experts call it “managing out,” a way to nudge an employee out the door while minimizing legal exposure. Sometimes it involves making a worker’s job so miserable that he’ll quit. Other times, it might mean building an airtight cause for a firing, even if the cause is bogus.
In her 13 years as a West Coast human-resources executive and consultant, Cynthia Shapiro has pushed out unwanted employees using a string of methods: setting impossible goals, giving problem workers a client nobody else wants, taking them off a project they love or surprising them with a bad performance review.
Most of the time, they quit, never knowing their exit was orchestrated. “It’s an art form, really,” Shapiro said. . . .
On the surface, managing out seems a normal disciplinary action. In both, employees are told they need to improve or face consequences. But a straightforward correction plan, which often involves extra training or even mentoring, is designed to help the employee. Surreptitious managing out ensures that he won’t succeed.
The article goes on to give an example where the strategy backfired, resulting in a successful age discrimination lawsuit, and then gives a different perspective:
“If you’re a company trying to avoid unemployment benefits or a severance payment, I suppose you would do it that way,” said Janice Clusserath, a former human-resources executive in Redmond, Wash. “But a company that’s reputable and cares about its employees wouldn’t do that.”
Instead, the employer typically explains where the worker is failing and sets up a probation program that might include more training and coaching. If he hasn’t improved within a set time, he’s terminated.
“I’ve never, ever said, ‘You’re fired,’” Clusserath said.
In theory, managing out, whether straightforward or sneaky, isn’t necessary.
Most states operate under at-will employment, meaning companies don’t need a reason to fire someone who isn’t protected by civil-rights laws or employment contracts. . . .
But few employers want to risk losing a discrimination case . . . . “Companies are scared to death to tell employees the truth,” Shapiro said. “If you give employees a little bit of ammunition, they’re going to run to the nearest lawyer.” Read more
“Managing out” may prevent some discrimination claims from being made, but is a recipe for disaster if they are made.
Let’s see, Ms. Shapiro, how do we prove discrimination? Treating someone in a protected classification differently than other similarly situated employees. The more determined you are to create conditions for failure, the more you will have to treat the individual differently than his or her peers.
Oh yeah, there’s also that little theory of “pretext.” If you insist that the employee just voluntarily quit, and this approach falls apart in litigation you may be tempted to fall back upon the valid reasons for termination you were afraid to honestly rely on. Too late! Now you’re offering inconsistent stories, evidence of pretext and thus discrimination.
And finally, count on such a terminated (oops, I mean “managed out”) employee to raise a claim of constructive discharge. Such a claim will look pretty good if someone somewhere along the line happens to tell the truth about the company’s intentions with respect to the employee.
The honest and straightforward approach advocated by Ms. Clusserath is preferable, IMHO. If an employee is able to conform his or her behavior to expectations, you have avoided the cost of turnover as well as the risk of litigation. If not, you have made it more likely the employee will understand they were treated fairly and not pursue legal action. Or, if they do pursue legal action, they may have difficulty finding counsel interested in their case. Finally, if they do sue, you can consistently and honestly defend your position.
