April 23, 2015

an exit interview will be next for this former employeeHere’s an issue an office manager recently told me about:

I’ve been having an on-going issue with an employee. I’ve suspected for quite some time (about 5 years) that this employee was at the heart of the problems in this office and now I am sure of it. I’ve caught her talking about me to my boss and right now the gossip mill in this office is as bad as it gets. Can I just lay her off? Problem is, she is pregnant.

NOTE! The problem isn’t that employee is currently in a protected class. The problem is that the employee is acting unprofessionally at work and she happens to be pregnant and therefore, in a protected class. Examples of protected classes are age, pregnancy, race, religion, and so on. It is when you combine the need to terminate an employee with a protected class that things get sticky. There is another problem here around procrastination and we are going to just say it out loud. For the past 4.5 years the employee has acted out and not done her job. The employer failed to take any action, not a written warning and certainly no termination. So “the problem” isn’t just the employee is it?

Caution!

I often speak to groups of employers, at seminars and within the context of education and I caution employers to understand what “protected class” is and how it can easily impact (often causing heartburn and delay) a decision to terminate an employee. Today’s talk isn’t about protected classes as much as it is on the subject of not hiding behind the words “lay off” when what you are actually doing is terminating an employee for bad behavior or unprofessional conduct.

The term layoff implies and is understood to mean that you have decided for a business reason, usually lack of work, that an employee or a number of employees must be cut from the work force. In smaller businesses this often means that the business will be cutting people a few at a time. So if you have 15 employees, you will cut one or two and see what it looks like a couple of months later. Then if things have not improved, cut a couple more and so on. HERE IS THE BIG THING: as you cut them you are not hiring anyone to replace them. Why? Because, you laid them off.

The problem we are seeing out there, is that many offices have a behavior issue with an employee and what they want to do is hide behind a lay off conversation and not take on the very direct conversation, which is your behavior is not acceptable and you are being fired for it.

Here is the irony. For the most part, in many instances the employer has had many opportunities and experienced a wealth of frustration with an employee’s behavior, so much so that at any given time, if they had been documenting and informing, they could have and probably should have let the employee go well before they became protected.

The Cure

If you need to let someone go because there isn’t enough work, then plan on not hiring someone back into their position for at least 3 to 6 months.
In contrast, if an employee is not performing their job duties or doing something that is annoying or detrimental , the path is to undergo Progressive Corrective Coaching with them wherein you inform them of the issue and give them an opportunity to self correct.

The cure in this case is not to set a trap for yourself by calling a termination a lay off. THEY ARE NOT THE SAME THING! If you lay off someone, and then run an advertisement for their job the next day, that could make the case for the employee to say, “The layoff was just a pretext. The real reason they let me go was because of my age, pregnancy, race, views on religion, sex, etc.” And guess what? Because you didn’t document the REAL reason as performance-related, arguing those things now makes YOU look like the liar, even though your reasons were legitimate.

So, you lose the advantage of being able to show in writing the legitimate reasons for your decision and to then invoke them in your own defense. Instead of being able to refute false and meritless accusations with what is in that employee’s record, you are left with only your word against theirs, and your own credibility is lacking because you already fudged about it being a work reduction scenario.

So, like in every other circumstance in this world, HONESTY is the best policy. And once again, your ability to confidently administer Progressive Corrective Coaching on a daily basis plays the key role in supporting your hiring and firing decisions by creating a written record.

Here are a couple directs links to progressive corrective coaching guidance and other useful guidance.

http://www.cedrsolutions.com/why-is-pcc-so-important
http://www.cedrsolutions.com/employee-confrontation-techniques

This highlights the need for up to date employee handbooks with support.

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Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.