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Letter to the Editor

Time to Change Who’s on the Bus

Firing an employee is never fun, but there are ways you can make the process better and less costly for your business.

There is a well-known business analogy that staffing a company is a little like driving a bus. It goes most smoothly if you have the right team of folks on your bus, particularly if everyone in that team also is seated in the right (or correct) seat on the bus.

As hard as it often can be to find a replacement for anyone on your bus, it’s easy to understand the value of doing whatever you reasonably can to help a person succeed in their current seat on the bus, or perhaps help them find a new seat that’s a better fit for them.

But there also are times when it becomes clear that there is someone who just has not “caught the right bus” and needs to be let off at the next stop.

Sometimes a new year is a good time to take a fresh look at who is on your bus. If you have reached the point of asking an employee to step off your bus, here is some advice on doing it effectively and in a way that should minimize your costs and risk of legal repercussions.

Keep in mind that while we can provide some general guidelines here, there is no substitute for solid legal advice from a good employment attorney familiar with your particular “bus” and situation.

Firing the right way

It can be difficult at times to not “lose it” and scream, “You’re fired!” to someone who yet again is clearly not doing what he is supposed to be doing. But California attorney Cory King cautioned that you are setting yourself up for potential legal ramifications if you do not take a more thoughtful, systematic approach to “kicking someone off your bus.”

Any ex-employees can sue you whether they are justified in doing so or not, King reminded employers. But there are some things you can do to mitigate the chances of such suits and to protect yourself should one occur. Here are some of his tips for terminating someone’s employment with your company:

• The first step is discipline, and King said that means written discipline. “The golden rule of discipline is that if it isn’t in writing, it doesn’t count,” he said. “I could retire if I had a nickel for every time somebody said to me, ‘Well, I disciplined him all the time. I talked to him over and over and over again.’ That isn’t discipline.”

  Without written documentation, it can too easily become a case of the employee’s word against yours, and the employer loses in most of those situations, King said.

  “You’re setting yourself up for failure if you’re not putting it in writing,” he said.

• If you are firing for misconduct – violation of a company policy rather than the employee’s lack of performance – conduct a “a reasonable and thorough investigation.” Inter-view witnesses, asking the “W” questions (who, what, where, why, when). These witnesses can either write their own statements, or you can summarize what they said and get their signature that what you have written is true and accurate.
• Give the employee a written “counseling form” that explains the misconduct and states that failure to correct the behavior will result “in disciplinary action up to and including termination.” This wording puts them on notice but also keeps your options open.

  Allow the employee to provide a written response on the counseling form followed by a signature acknowledging he read and understood it. (He does not have to agree with it – and he can write that as his response – but the employee should acknowledge having read and understood it.) The employee should be given a copy and a copy should be placed in his or her personnel file.

• If the issue is performance rather than misconduct, the counseling form should indicate what standards the employee is expected to meet, and provide a timeline for when his performance will be reviewed, again stating that failure will result “in disciplinary action up to and including termination.” Find out if there are reasonable things you can do to help the employee meet the performance standards.
• Always have a witness in the room when you are discussing the situation with (or are actually firing) the employee. King recommended that someone in upper management serve as the witness, and that one of the two people counseling or terminating a female employee should be a female. If an employee refuses to sign a counseling or termination form, the witness can write and sign that the employee refused to sign.
• If after following the counseling process, you decide to fire the person, make sure you have your documentation in order. Many states require you to provide a final paycheck at the time of firing. If you need a day to prepare but do not want the employee there, suspend him “pending the completion of the investigation.” This can be a good tact to take in those situations when you are tempted to yell, “You’re fired!” at someone, King said, because it buys you time to cool off and prepare.
• Following any counseling or termination, King recommended writing a brief wrap-up memo that will help you if down the road you face questions about what happened.

Avoiding unreasonable unemployment claims

Anyone who has had the “pleasure” of letting someone “off the bus” knows that even if that ex-employee takes no legal action, the costs to the business may not necessarily end there. Your company’s state unemployment account can be charged for that ex-employee’s unemployment payments.

If that employee just was not a good fit, or was not capable of performing the job even with adequate training, you might consider taking the hit for the unemployment payments as the price of a poor hiring decision.

But if an employee lost his or her seat on the bus because of misconduct, you may wish to challenge the unemployment assessment. Susan Crosby of Corporate Cost Control, Inc., in Dallas, Texas, offered this advice for those looking to curtail unwarranted unemployment assessments:

• If an employee is telling the state he was fired for performance issues, but in reality he was fired for misconduct, the employer has a good chance to prevail. Crosby said states often view performance issues as a “green light” to pay the claim, but if it was actually a violation of company policy that led to the firing, that can help the employer win an appeal.

  Therefore, in your written or oral statements to the unemployment department, make it clear if the employee was fired because of conduct and violation of company policies rather than “performance.” Avoid any discussion of the ex-employee’s capability to do the job, to follow directions or to meet your standards, because all of these things deal with performance rather than misconduct.

• You can expect to be asked during any unemployment-related interview or hearing if the employee was aware he or she was at risk of losing his/her job. This is where the proper documentation discussed above will serve you well. Your written counseling reports to the employee should include the warning that further misconduct could be grounds for dismissal.
• During an unemployment hearing or interview, start with the exact single reason the employee was fired. A laundry list of misconduct over years is not going to help support your case. If the employee was late yet again on the day you finally terminated him or her, state that as the cause, backed up by the written warnings you gave the employee that arriving late again could result in disciplinary action up to and including termination of employment.
• If you wait too long after the “final incident” to fire the employee, unemployment agencies may look at that as “employer convenience” and you will often lose. So although not firing the person the day of (or the day after) the “final incident” but instead waiting until you find a replacement may seem to make some sense, it could well impact your ability to challenge an unemployment assessment.
• Always remain calm and polite, not defensive, and state facts and specifics, not opinions or generalizations.
• An employee who quit may in some cases be granted unemployment, Crosby said. States often will reject your appeal if the employee resigned after you gave him or her a choice to quit or be terminated. This type of resignation is generally viewed as a termination for unemployment purposes. And an employee who quit can often get unemployment if he can show he quit “with cause” – because you made significant changes to job duties, pay, hours, or work days, etc. Bear in mind that each state unemployment agency determines what changes they consider “significant.”
• Crosby advised thinking about your liability before you appeal. Your unemployment liability for someone who worked for you only a few weeks or months may not be enough to warrant the time and related expenses to challenge the payment.

  The rules and laws governing unemployment claims are generally written to protect workers, not employers, Crosby said. But if you handle the process correctly, you can help control your unemployment costs.

Improving the bus ride

Determining that you need to kick someone off your bus is rarely easy or fun, but it can often have a positive impact on the others on the bus and for how successfully the bus moves down the road. By following the advice above, you can help make the process less costly for your business in the long run.   o

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