Thursday, March 19, 1998

Employers told to document, be fair and settle before firing troublesome worker

By Ellen Forman / Sun-Sentinel, South Florida

MIAMI -- It's a title destined to send chills down a worker's spine: How to Finally Fire the High-Maintenance, Long-Time, Borderline Employee Who You Know Will Sue.

For labor attorney Elizabeth J. du Fresne of Steel Hector & Davis, who spoke on that subject before a crowd of 100 at the Miami City Club on Thursday, getting rid of an incompetent employee is a tricky business.

In a wide-ranging look at employers' most common termination mistakes, she offered blunt advice on how to get rid of a bad employee while staying out of court.

"Do it with a pure heart," she said. "Your reason for firing this individual is not because of their gender, race, national origin, religion, age, pregnancy, marital status or disability" -- categories covered by discrimination laws.

"It's because when you were smaller, their competency, productivity or attitude was not as significantly a problem as it is now that you have grown. It's because they have driven out one too many persons who were better than they were and you can't afford to lose another valued employee," she said.

With one out of every five lawsuits in the United States being brought by a worker -- and verdicts often reaching into the millions -- bosses need to arm themselves against the possibility of a multimillion-dollar jury verdict, she said.

"Your CEO's salary is going to look like chicken feed," she said.

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Not too long ago, it was fairly easy to fire employees in Florida, a right-to-work state, with a simple, "I'm so sorry, it's just not working out," du Fresne said.

The employment litigation explosion changed all that.

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Now, du Fresne advises employers to be succinct and specific about why a worker is being asked to leave the company. Vague explanations are more likely to lead workers to believe they were discriminated against, she said.

The core of du Fresne's advice: Before you fire, make sure you have a documented case of ongoing incompetence that will stand up before a tough jury should the employee decide to sue. If it looks like one person is being singled out and fired, they're more likely to be successful in a discrimination case.

"There's nothing that undercuts the defense of a termination case more than saying, 'This person did not do what I told them to do, so I fired them,' " du Fresne said. "They'll bring in five, or 10, or 15, other people who have had exactly the same scenario and have not been fired."

One common employer mistake: firing someone on the spot.

"It could be the most expensive staffing decision you make that year, or any other year," she said. But there's one exception to the rule of waiting to make a case: If an employee threatens violence, they need to be removed from the workplace immediately, du Fresne said. In that case, it's best to suspend them pending an investigation, then do the termination in a letter.

Another no-no: blabbing about an attempt to document poor performance.

"Could anything be stupider than to tell anyone you're building a case?" du Fresne said. "Think about every aspect of how it will sound to working folk and retired folk on a jury. You'll sound like a mean, vindictive person who took this person's job away by nitpicking."

Companies should also watch out for current employees who may be building a discrimination case.

"How do you know they're taking notes?" du Fresne said. "They ask to see their personnel file. They say, 'I lost my employee handbook. May I have another one?' "

Others record conversations with their managers, saying they want to make sure to capture every word.

"Assume you're going to be sued," du Fresne said.

If a poorly performing employee has been getting nothing but excellent reviews from a soft-hearted boss, it's time to document what's been going on all those years.

"We do a written warning, which reflects all the things that we never got our act together to put in the file," she said.

The written warning that will stand up to a jury's scrutiny should offer one last chance. "I want them to understand that their job's on the line," she said. 'Your task is to truly give them every last chance."

It's important to give the appearance of fairness at every step. The person who investigates the case internally -- and, if necessary, signs the termination letter -- should be a person who's perceived as fair and equitable. It's essential that the person who signs the termination letter is willing to go on the witness stand if necessary to defend the company's actions.

Companies can avoid most of these problems by settling up with the employee at the time of termination, du Fresne said. Allow them to resign rather than be fired. Work out arrangements that won't cost money: a neutral or vaguely positive letter of recommendation. If possible, ask them to sign a release saying they won't sue.

"As reluctant as we all are to give money to the employee who has driven us crazy, now is the time to bring closure, if you can," she said. "Settlements done in the course of a termination are notably cheaper than settlements done in the course of litigation."

Before you fire a worker, remember these tips

Tips for bosses to consider before terminating a worker:

NEVER FIRE ON THE SPOT. Even in cases of violence or theft, "suspend pending investigation," evaluate the matter and take appropriate steps.

DOCUMENT. Keep a record of wrongdoings that have occurred, even in the most straightforward cases.

REVIEW. Go over and supplement the personnel file so you're comfortable with what could be provided to a government agency or lawyer outside the company who requests it.

GET BOTH SIDES. Give the employee an opportunity to respond to charges before a final decision on termination is announced. Keep it calm and professional.

BE FAIR. Examine previous discipline of similarly situated employees. Consistency is the best defense to the charge of discriminatory treatment.

DON'T LIE. Never backdate or falsify a personnel file. If evaluations do not reflect an employee's checkered history, conduct a serious reprimand of the employee for the matter that has led you to want to fire them. In the reprimand, reflect the entire history of the employee's problem, including oral warnings, with the time, place and the manager who made them.

--SOURCE: attorney Elizabeth du Fresne, with Steel Hector & Davis.