Four reasons your employment lawyer thinks firing should be a last resort

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 general.

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 compelling need. 

(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 unhealthy.

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 be fired. 

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.

*Grievance administration.

*Disruption and cost associated with arbitration, if you have that.

*Possibility that arbitrator will reinstate employee with back pay, anyway.

*Cost of severance package, if you're lucky and employee takes it. 

*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 administrative complaint.

*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 ever after.

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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