Question: How do employers protect against departing employees who may become violent?

Answer:

Perhaps you read about the woman who recently put her HR manager in a choke hold and stabbed her with a pen when she became angry when leaving employment.  Mind you, this employee was resigning, not being terminated, and she had turned in a broken computer tablet.  The employee became enraged when HR told her she would have to pay $500 for the tablet to be fixed pursuant to Company policy.  The departing employee fled the scene but police later located her and apparently charged her with assault and battery.

The best advice in these circumstances is to trust your instincts.  If you know you are going to have a confrontation with an employee (such as a meeting to terminate or confront an employee about a difficult topic), take steps to mitigate risk.  Here are some steps to consider and/or implement:

• If you anticipate a strong reaction, do not meet with the employee alone.  Be sure there are two of you present.
• Ensure at least one other person knows when and where you are meeting.
• Have a desk, table or other piece of furniture between you and the employee, to help define boundaries.
• Consider having security on site, in case the meeting goes sideways.
• If the departing employee makes a threatening comment, such as, “You’ll be sorry for this,” take it seriously.  Immediately consult with colleagues, counsel or someone else with expertise dealing with such situations for guidance.
• Try to disarm a threat or dispel anger.  “Joe, that sounded like a threat.  I understand that you must be angry.  I’d like to support you in this transition.”
• If a meeting becomes hostile, cut it short and try to get yourself out of the situation as quickly as possible.
• Situate yourself in the meeting room such that you can leave easily, without having to pass or get around the angry employee.
• Ensure colleagues outside the meeting room are aware of your concerns and are on alert to come to your aid, should the need arise.
• Consider installing a panic button in the room where difficult HR meetings occur and at your reception desk, so security or the police can be summoned quickly in case of emergency.
• Minimize reasons why the departing employee may have to revisit the workplace. For example, mail the final paycheck and offer to have personal belonging collected and delivered to the departing employee’s home.

About the author:   Laura Liss is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that affect their businesses.

Question: Can employers fire employees for their activities off duty, such as attending a controversial rally?

Answer:

Yes, if an employee is at-will, generally he can be fired for any or no reason, with or without cause, with or without notice.  But there are various considerations to keep in mind.  This topic has been on a lot of people’s minds after the recent upheaval in Charlottesville, Virginia and its aftermath.

As an employer, you may not like or condone your employee’s off duty conduct, but is it really your business what they do off duty?  It may be if the off duty conduct at issue goes against your company’s mission and values (such as fostering an environment of mutual respect) or if the fact that your employee engaged in this off duty conduct is causing unrest and tensions during the work day.  For these reasons, employers may fire employees for what they do in their spare time, if it reflects negatively on the business.

Before doing so, employers should keep in mind that some states have laws (often referred to as lifestyle discrimination laws) that prohibit employers from discriminating against employees for engaging in lawful conduct while they are off duty. Federal law does not offer protections to private sector employees for their political views or for engaging in political activities, whereas public sector employees generally cannot be terminated for their political views.  Despite arguments by the Klu Klux Klan (KKK) to the contrary, courts have rejected the argument that participation in the KKK is religious activity that should be accommodated under Title VII.

Aside from possible laws that may be implicated, employers also should consider the precedent being set.  Employers should strive to be consistent in their approach, which can be difficult when it comes to employees’ personal activities during non-working hours.  Assessing what personal activity may make others uncomfortable in the workplace is not a straightforward task. Preferably employers do not have to wade into this area but, in extreme circumstances, employers may feel compelled to do so.  (For example, read about a hot dog shop’s reaction to an employee’s participation in the “Unite the Right” rally here.)

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: Can we fire an employee for an inappropriate social media post?

Answer:

Many are surprised to learn that often times you can’t.  Although the answer largely depends on the particular facts and circumstances, many recent cases have found in the employees’ favor.  Take, for example, a catering worker who became upset when his manager chastised employees in a “raised, harsh tone” about the employees “chitchatting” in front of guests at an event.  In response, one employee went outside and posted on Facebook that “Bob is such a NASTY MOTHER F—— don’t know how to talk to people!!!!!! F— his mother and his entire f——- family!!!! What a LOSER!!!!! Vote YES for the UNION!!!!!!”  This posting, from his personal phone while on an authorized break during work hours, but two days before employees were to vote for union representation, was visible to his Facebook friends or anyone viewing his Facebook page.  The employer investigated the posting and fired him.  Seems like a reasonable response to such a harsh post specifically directed at a manager and his family, right?

Well, the National Labor Relations Board (NLRB), which has jurisdiction over both union and non-union employers, and the Court of Appeals held that the employer could not fire him.  In their decisions, the NLRB and Appellate Court considered the fact that the employer permitted profanity and found that, while “distasteful,” the Facebook post was legally protected.  Specifically, that the employee was fired for his union activity and complaints about supervisors abusing employees.

Would the decision have been different had the employee not included the “Vote YES for the UNION!!!” line or if the post hadn’t occurred right before a union election?  Maybe.  But the NLRB has broadly interpreted social media posts about “terms and conditions of employment” to be protected concerted activity, even though the posts are in writing and “visible to the whole world.”  More and more, what employees used to discuss around the water cooler, now often appear in (or are discussed via) social media posts.  So use extreme caution before terminating employees for the content of their Facebook or other social media accounts.

About the Author:  Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.

Question: How much severance should be provided to a departing employee?

Answer:

You have decided to let an employee go and to provide severance, but now you’re trying to figure how much severance is appropriate. Employers first need to consider whether they have a severance policy and if there is a past practice of providing severance. If there is no severance policy or past practice to follow, then you need to start somewhere. In better economic times, two weeks of severance for every year of service was pretty typical. Then there was a swing towards little to no severance being offered. Currently, one week of severance for every year of service is fairly common. Generally, employers do not count partial years of service. Sometimes there are minimums and maximums, such as, one week of severance for every full year of service with a minimum of one month’s severance and a maximum of 12 weeks. Severance packages for executive level employees often are higher and can range from 6 months to a full year of base pay. However, severance packages for executives often are negotiated on the way in, either in an offer letter or employment agreement.

Other common components of severance packages are:

• healthcare benefits (that is, continuing to pay the company-share of health insurance premiums during the severance period if the departing employee timely elects COBRA),
• outplacement services or
• allowing the departing employee to keep equipment, such as their company cell phone, tablet or laptop. (Don’t forget to wipe Company email and data from these devices before allowing the employee to retain them.)

Consider what types of severance may be important to the departing employee and tailor severance packages accordingly. On the other hand, employers always should be cognizant of the potential precedent being set and consider the Company’s willingness to provide the same severance benefits to someone else.

Question: What are some things to avoid when it comes to termination meetings?

Answer:

Here are 10 things not to do when conducting an employment termination:

1. Don’t argue or negotiate. Use the right words and tone, sufficient to convey the decision, but not to inflame or become argumentative.
2. Don’t get into detailed reasons for the decision. Keep the meeting short.
3. Don’t get into how you’re going to transition the employee’s duties.
4. Don’t make up reasons why you are terminating the employee. Prepare a script and stick to it.
5. Don’t make any admissions or apologies.
6. Do not compliment the employee in an effort not to hurt her feelings. Mixed messages can be confusing.
7. Don’t argue with the employee in an effort to justify the decision. Instead, let the employee have an opportunity to have a say, and pay close attention to what is said.
8. Don’t make reference to sex, age, race, religion, national origin, sexual orientation, disability or any other protected class during the termination meeting.
9. Don’t answer questions about other employees. If asked about others, respond generally, such as: “I know this must be difficult news, but we’re here to discuss your situation. We cannot discuss other employees.”
10. Don’t forget to document what was said during the termination meeting. You want a record of who was present, what was said and any comments the departing employee made.

Question: What are some tips for conducting a termination meeting?

Answer:

Most people will never find terminating someone to be easy. But the more prepared you are for the meeting, the more comfortable you will feel and the more smoothly it is likely to go. Here are 10 suggestions for conducting a termination meeting:

1. Select two managerial employees to be present for the meeting (typically the departing employee’s direct supervisor and HR) and decide who is going to say what.
2. Be organized and have a plan for the meeting, which will help convey that you are confident that the right decision has been made.
3. Within the first few minutes, tell the employee she is being terminated. Don’t drag out the news or engage in small talk, make jokes or discuss business.
4. Explain the decision briefly and clearly. Less is typically more when it comes to termination messaging.
5. Through your words and conduct, the departing employee needs to realize that the termination decision is yours, not the indefinite “they” or “management,” and the decision is not open for debate.
6. Make sure the procedures used in conducting the discharge and exit are consistent with those used generally.
7. Provide for the return of Company materials, equipment, documents, and keys.
8. Establish a procedure to shut off computer, email and telephone access during the meeting. Don’t make the mistake of allowing the departing employee to get back on the Company’s computer or email system.
9. Be sure to arrange to obtain any passwords needed from the departing employee and promptly change the passwords, change locks (if needed) and attend to related security matters.
10. Ensure that the employee leaves employment with as much dignity and self-esteem as possible.

Question: What day of the week should we conduct an employment termination?

Answer:

There tend to be strong schools of thought on this issue. Some say never terminate someone on a Friday. The person then has all weekend to talk to family and friends, get fired up and decide to sue. And the person can’t be proactive and start job hunting over the weekend. In truth, if someone is going to get fired up and sue, that’s going to happen regardless of the day of the week. And, with as much job hunting and recruiting that goes on via social media, plenty of proactive job search efforts can be undertaken regardless of the day of the week.

Some say never terminate someone on a Monday. It’s not fair to bring someone in to start a new work week, just to show them the door on Monday. And firing someone on a Monday allows them all week to consult with an attorney. In truth, you could have done it on Friday and ruined the person’s weekend. And attorneys tend to be readily accessible, so putting a full week of business days in front of someone is not going to increase the odds that the departing employee consults an attorney.

All in all, a termination likely will never be well-received. There is not a “right” day of the week to do it. Proceed with the termination when you are ready. Being well-prepared to conduct a termination is critical. More on that topic in another post.

Question: We have decided to fire an employee, can we call it a layoff?

Answer: 

If you have (or can realistically craft) true business reasons for a termination to be a layoff, fine. Otherwise, using layoff in your termination messaging may create problems. You are better off sticking with the true reason for the termination or perhaps giving no reason at all.

This is a frequently asked question when it comes to terminations, even terminations of problem employees. It just seems gentler to call it a layoff, right? So what’s the problem with labeling a run of the mill termination as a layoff? If the reason given is not true, the door is left open for problems. Perhaps the “layoff” is masking a performance issue that should have been addressed. Does the employee’s personnel file reflect those performance issues? Will the departing employee find out later that you actually replaced him, which highlights that the reason given wasn’t true? You don’t want the “layoff” to appear to be a pretext (or lie) to cover an unlawful reason for terminating an employee. In short, harsh as it may seem, sticking to the real reason is often the best approach in terminations.

Terminating problem employees is part and parcel of running a business. There are many twists and turns in terminating an employee and it is easy to end up in a dark alley. I intend to devote my first several blog posts to addressing common termination questions and providing some tips to make this difficult task easier.