My company doesn’t tell its employees why they’re being fired. And two other tricky workplace dilemmas
The following article is from the prestigious Inc.com magazine, the leading source of information on technology, growth, leadership, and HR for the SMB sector in the United States.
Inc.com columnist Alison Green answers questions about workplace and management issues: from how to deal with a micromanaging boss to how to talk to someone on your team about body odor.
Here’s a summary of the answers to three reader questions.
- My company doesn’t tell its employees why they’re being fired.
I’m a manager in an office. I’m not involved in hiring or firing.
I only make recommendations, and someone else makes the decision and implements it.
My instructions are not to speak to the person about it or refer their questions to Human Resources.
I’ve heard from former employees that when the company fires someone, they’re told nothing about the reason, only that today is their last day.
In some cases, the fired person somewhat expects it, based on prior conversations, but other people are caught completely off guard and never learn what led to them losing their job. Is this normal?
Green responds:
No, it’s not normal. It’s also not unheard of, but it’s the sign of a seriously dysfunctional company.
When an employee is at risk of being fired, responsible companies give them notice, both so they won’t be surprised if it happens and so they have the opportunity to implement necessary improvements.
Offering that kind of feedback is critical in management, not only for fairness, but because many people improve when they understand what needs to change.
It seems like your company sometimes has these conversations, but not consistently.
Also, when someone is fired without explanation, most people will search for the answer.
If there wasn’t an obvious performance issue or they feel they were treated unfairly, they’re much more likely to assume something untoward happened… and some of those assumptions may be related to discrimination, retaliation for legally protected conduct, or other things that may lead the person to consult an attorney.
And now their company is spending time and money defending themselves legally, when they could have avoided it by communicating like adults from the start.
- I Regret Giving My Employee Relationship Advice
About a year ago, one of my direct reports, Anna, had a baby.
She’s talented and hardworking, and I was able to give her more flexibility than the company typically offers.
While I’ve tried to focus on how I can help her manage her time at work, she’s often complained to me about how little help her husband gives with the baby. They both work from home.
In virtually every meeting, Anna struggles to juggle caring for the baby with participating. There have even been several occasions when she started the meeting without the baby, and her husband showed up on the video call, handed her the baby, and left.
After several weeks of this, I told him I needed to find a way to divide childcare more equitably
and that if he’s supposed to be babysitting during a meeting, he should take charge and not bring the baby in mid-meeting.
I’ve always wanted to say this kind of thing to him, but as his boss, I knew it wasn’t appropriate to give him relationship advice.
I’ve been worried ever since that I’ve overstepped my bounds, but now I don’t know how to undo it.
Green responds:
It sounds like Anna is pretty clear about how you feel. If she’s not acting on it, she probably has reasons for it.
If it’s critical that Anna not have the baby during meetings, you should tell her (without weighing in on how her husband should help) and ask what you can do to make things easier for her, such as changing the meeting times, scheduling them further in advance, or accepting that she won’t be able to attend some.
But I would also wonder how you would handle it if Anna were a single mother. If you were fine with the baby’s presence at the time, and the main reason you aren’t now is that her husband should be doing his part, then I think you need to let it go.
Yes, he should be raising his child, but if Anna can’t make it, you definitely can’t.
You have to work with what you have, which is an employee with significant childcare responsibilities right now and a husband who, for our purposes, is practically gone.
As for what to do about what you told her, maybe it’s best to let it be.
But if you want to say something, you could say, «I went too far in explaining how to handle childcare with your husband, and I apologize for intruding on your private affairs.
I understand you’re in a difficult situation and are doing the best you can.»
And who knows what’s going on with Anna’s husband: maybe he’s lazy, or maybe he has medical issues that limit his activities, or maybe there’s something else he and Anna have jointly decided that justifies interrupting her while she’s working.
Be that as it may, it’s Anna’s job to figure it out. Your role is to be direct about what you need from her and listen to her when she tells you what is and isn’t possible, not to tell her how to arrange her marriage to achieve it.
- Interview candidates before the position is approved
I’ve had six interviews with one company in four months. I know at least three other candidates were interviewed in the early rounds.
I’ve interviewed with all the team members I’d be working with and with the hiring manager twice.
She’s encouraged me and told me the team appreciates me and wants to hire me. But she claims to be struggling to make a compelling business case for the hire.
Why interview multiple candidates multiple times without an active business case? Is that how you hire?
This sounds more like sourcing candidates than hiring. To me, hiring implies that there’s a position to fill. And that when you find the right person, you’re in a position to move forward, not leave them hanging indefinitely.
Green responds:
Generally, yes, you should get approval for a hire before proceeding (and that approval is usually based on a compelling business case).
That said, sometimes hiring moves forward sooner than that because it’s assumed approval will be immediate (because the case seems obvious or because it’s always been assumed in the past, etc.), because it’s a «see if we can find the right person before making a final decision» situation, or because things are changing (for example, if a reorganization is underway and the final roles aren’t clear, but project demands prevent everything from being put on hold in the meantime), or for all sorts of reasons.
However, when this happens, it’s not okay to subject someone to six interviews. That’s excessive under any circumstances, but especially when you don’t know if there’s a definitive position to offer. I would let them know you’re very interested in the position (if there is) and ask them to get in touch again once they receive approval.
Wrongful Termination: Was Your Termination Illegal?
The following contribution is from the Nolo portal, a pioneer in legal self-help, offering legal information and solutions in plain language for individuals and businesses.
The author is Barbara Kate Repa, Attorney and Journalist.
If you were fired from your job, do you have grounds to challenge it?
If you were fired from your job, how do you know if the termination was legal or illegal?
Wrongful termination occurs when an employee is fired for violating the law (for example, for discriminatory reasons or in retaliation for reporting a safety violation) or for breaching the terms of an employment contract.
If you have a written contract or other statement promising job security, you have a strong case for not being an at-will employee.
If an employee believes they have been wrongfully terminated, they can file a claim or lawsuit against their employer to obtain compensation for lost wages, benefits, and other damages.
The legal process for a wrongful termination lawsuit can be complex and may involve proving the employer’s intent or establishing a violation of the law.
Most jobs are «at-will,» meaning an employee can be fired at any time and for any reason, or for no reason at all (as long as the reason is not illegal).
However, there are some important exceptions to the wrongful termination rule, as well as legal remedies, that can help you keep your job or sue your former employer for wrongful termination.
Written Promises
If you have a written contract or other statement that promises you job security, you have a strong argument for not being an at-will employee.
For example, you may have an employment contract that states you can only be fired for cause or for the reasons stipulated in the contract.
Or, you may have an offer letter or other written document that promises continued employment.
If so, you may be able to enforce those promises in court.
For help determining whether you were an at-will employee, see the Nolo article «At-Will Employment: What Does It Mean?»
Implied Promises
The existence of an implied employment contract (an agreement based on what your employer said and did) is another exception to the rule of continued employment.
This can be difficult to prove, as most employers are very careful not to promise continued employment.
However, implied contracts have been found where employers promised «permanent employment» or employment for a specific period, or where employers established specific forms of progressive discipline in an employee handbook.
To determine whether an implied employment contract exists, courts consider several factors, including:
The length of your employment
The consistency of promotions
History of positive performance reviews
Assurances of continued employment
Whether your employer violated a standard employment practice when terminating you, such as failing to provide the required warning, or
Whether you were promised long-term employment upon being hired.
Breach of Good Faith and Fair Dealing
Employers are prohibited from retaliating against employees who have engaged in certain legally protected activities.
If your employer acted unfairly, you may be able to file a lawsuit for breach of the duty of good faith and fair dealing.
Courts have found that employers breached the duty of good faith and fair dealing by:
– Firing or transferring employees to prevent them from collecting sales commissions
– Misleading employees about their prospects for promotions and pay raises
– Inventing reasons for firing an employee when the real motivation is to replace them with someone who will work for less pay
– Downplaying the negative aspects of a particular job, such as the need to travel through dangerous neighborhoods late at night
– Repeatedly transferring an employee to remote, dangerous, or undesirable assignments to force them to resign without severance pay or other benefits to which they would normally be entitled
Some courts do not recognize the «good faith and fair dealing» exception for at-will employment.
And some states require a valid employment contract before employees can sue for breach of good faith and fair dealing.
Public Policy Violations
It is illegal to violate public policy when firing an employee; that is, to fire for reasons that society recognizes as unlawful grounds for termination.
For a wrongful termination claim based on a public policy violation to be admissible, most courts require a specific statute establishing the policy.
Many state and federal laws specify employment actions that clearly violate public policy, such as firing an employee for:
– Revealing a company practice of refusing to pay employees their earned commissions and accrued vacation time
– Taking time off work to serve on a jury
– Taking time off work to vote
– Serving in the military or National Guard, or
– Notifying authorities of a violation that harms the public (whistleblowing).
Some states also protect employees from being fired for very specific reasons, such as serving as an election official or volunteer firefighter.
Some courts have also ruled that employers cannot fire an individual for exercising a legal right or for exercising a legal right, such as filing a workers’ compensation claim or reporting a violation of the Occupational Safety and Health Act (OSHA).
Discrimination
Employers cannot fire even at-will employees for unlawful reasons, and discrimination is illegal.
If you believe you were fired because of your race, color, national origin, gender, religion, age, disability, pregnancy, or genetic information, you should consult with an attorney immediately.
There are strict deadlines and rules that apply to discrimination claims; for example, you must file a discrimination complaint with a state or federal agency before you can sue your employer in court.
Endorsements
Employers are prohibited from retaliating against employees who have engaged in certain legally protected activities.
To prove that you lost your job as a result of your employer’s retaliation, you must prove all of the following:
– You engaged in legally protected activity, such as filing a complaint with the Equal Employment Opportunity Commission or making a formal complaint to your employer alleging harassment or discrimination.
– That activity motivated your employer to act; For example, you received a reprimand immediately after your employer discovered you filed a sexual harassment complaint.
– Your employer’s actions had adverse consequences for you; for example, you were fired, denied a promotion, or received an unjustified negative performance review.
Fraud
In extreme cases, an employer’s actions in terminating an employee are so deceptive and improper that they rise to the level of fraud.
Fraud is commonly found in the recruitment process (where promises are made and broken) or in the final stages of employment (such as when an employee is induced to resign).
To prove that your job loss was due to fraud, you must prove all of the following:
– Your employer made a false statement;
– Someone in charge knew of the false statement;
– Your employer attempted to deceive you (or attempted to induce you to rely on the statement);
– You actually relied on the statement; and
– You were harmed in some way by relying on the statement.
The most difficult part of proving fraud is demonstrating that the employer acted intentionally, with the intent to deceive you.
This requires good documentation of how, when, to whom, and by what means the false statements were made.
Defamation
A defamation lawsuit aims to protect a person’s reputation and standing in the community.
To prove that defamation was part of your job loss, you must show that, during the termination process or when providing references afterward, your former employer made false and malicious statements about you that harmed your chances of finding new employment.
To sue for defamation, you generally must show that your former employer:
– made a false statement about you;
– made the statement maliciously (i.e., knowing it was false or with complete disregard for its falsity);
– said or wrote that statement to at least one other person; and
– harmed you in some way by communicating it, for example, by causing you to lose your job or preventing a new employer from hiring you.
To win a defamation case, you must show that the hurtful words were more than trivial gossip. True defamation must be truthful and must be false. For more information, see Nolo’s article «Simplified Defamation Law.»
