I'm an employment lawyer. Here are 5 things you employers are doing wrong.

You won't want to miss this!!!

You all probably read respectable news sources. I subscribe to a number of "sober" mainstream publications, but have a sick attraction to the Daily Mail and the New York Post

Addressing the pressing issues of our day.

Anyway, both publications frequently publish articles by so-called "experts." The gist is, "I am a [insert field] expert. Here are five things you're doing wrong with [something related to field]."

Example: "I am a food expert. Here are five ways you are scrambling your eggs wrong."

Even I don't bother reading this crap. When it's too stupid for me, it is really stupid.

But last weekend, the Daily Mail had a "recruitment expert" (not just a recruiter, but a "recruitment expert") talk about "5 signs that you're about to get fired." (This recruiter may indeed be an expert on recruitment, but I wasn't familiar with him, and this is the Daily Mail, so I'm putting "expert" in quotes until further notice.)

I can't argue with what he said, though. The last one really made me laugh: "You are placed on a Performance Improvement Plan." 

My boss put me on a PIP. Should I be concerned?

Beats me.

Just kidding. Yes, being put on a PIP is very bad. It is generally the "last chance" before a termination for poor performance. Some employees do rally after receiving a PIP, but many do not.

Well, after reading that article, I decided that anybody could do one of these "I'm an expert/here are five things" articles. So, with that in mind, from an employment lawyer (moi!)*, here are five things that you -- the employer -- are doing wrong:

*I am not calling myself an "employment law expert" because that could get me in trouble with the my State Bar.

No. 1: You fire an employee for breaking a "rule," and the rule isn't published anywhere -- it's just "common sense."

This could be all right if the employee's behavior is so egregious that anyone in his or her right mind would know better than to do it. You know, like murder someone, or sell fentanyl to the kindergarteners on the playground across the street. On the other hand, if you're firing the employee for poor attendance and you don't have an attendance policy, that could be a problem because what is "common sense" to you may not necessarily be "common sense" to your employee. In other words, you need to spell out the rule before you fire someone for violating it. 

That's just common sense.

No. 2: You fire an employee in a legally protected category for "not being a good fit" with no further explanation.

Before I go on, let me note that everybody is in a legally protected category. We all have a race, an age, and a sex, among other things. A white 30-year-old male can still sue you for race and sex discrimination. (Even age discrimination in a few states, although the employee has to be 40 or older to have a claim under federal and most state laws.) If your only reason for termination is that the employee is "not a good fit," then that employee -- with or without the assistance of a lawyer -- is going to assume that he or she didn't "fit in" for an unlawful reason.

It is true that an employee can be a "bad fit" for legitimate, non-discriminatory reasons. If you have one of those reasons, at least explain and document how the employee fails to fit in. For example, "Robin is a bad fit because every time her supervisor asks her to perform a five-minute task, she argues with him for 15 minutes about how the task is unnecessary busy work and unreasonably interferes with her ability to read the Daily Mail online during her work hours. And she also doesn't perform the task."

No. 3: You fire an older employee right after your CEO sent out an email saying that the company needed to "lose the dinosaurs" and bring in "some new blood."

I wish I had made this up, but unfortunately it's not unheard of in the real world. If your CEO, or some other person in a high-level position, says something like this, just resign yourself to the fact that all of your employees who are 40 and older are protected from any adverse employment action unless they commit murder or sell fentanyl to kindergarteners. (See No. 1, above.) A reduction in force might also be possible, but only if (1) you can prove you had a legitimate reason for including the older employee in the group being let go, and (2) the group being let go includes a lot of young people, too.

Your new VP of Sales.

No. 4: You know harassment is going on in your workplace, but you don't do anything about it because no one has made a "formal complaint."

Ugh. This one, unfortunately, is based on the real world, too. If an employee makes an "informal complaint" of workplace harassment, then you need to act on it immediately. This could include word-of-mouth, or text, chat, or email. What's more, if you know, or even suspect, that workplace harassment is going on, then you need to act on it immediately, even if you haven't received any complaint at all.

But don't take my word for it. See what the U.S. Equal Employment Opportunity Commission says in its proposed Enforcement Guidance on Workplace Harassment.

No. 5: You fire an employee for poor performance without first putting the employee on a Performance Improvement Plan or having other documentation that shows you made a decent effort to address the performance issues.

Hat tip to our Daily Mail recruitment "expert" for giving me this idea. 

A formal PIP is not necessarily required for a poor performer, but you need to be able to show that you pointed out the deficiencies to the employee and gave the employee a reasonable opportunity to shape up. If the employee didn't shape up the first time, you need to be able to show that you tried a few more times in good faith.

The problem with performance-based terminations is that many supervisors and managers try to be very tactful (dare I say, "positive"?) when giving performance reviews. You all know what I'm talking about. Instead of saying,

"Kelvin failed to meet a critical deadline on the Potrzebie Project, which created extra last-minute work from his teammates to ensure that the Project went out on time,"

you say,

"In the coming year, I would like to see Kelvin take the opportunity for growth in the area of time management."

There may be good reasons to be diplomatic in a performance review. It's tough to balance the need for constructive criticism with a desire to not destroy the employee's morale. But if "gentle" performance documentation is all that you have, you'll have a hard time proving that the employee was performing badly enough to deserve termination. After all, who among us is perfect? 

If you need to terminate an employee for performance, and the employee's performance reviews are "soft," your best bet is to backtrack about six months. Start a coaching process apart from the reviews. In other words, provide a clear, documented feedback as to what the issues are and what the employee needs to do. Then (assuming the employee doesn't improve) follow up after a reasonable period with more discussions with the employee and stronger documentation. If that still gets you nowhere, then put the employee on a final warning or a PIP. If the employee still doesn't improve sufficiently, you should be safe moving ahead with termination.

Image Credits: Daily Mail screen shot by me; ultrasound from flickr, Creative Commons license, by Peter & Joyce Grace.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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