Q: We have wanted to fire a problem employee for many months but put it off because several on our management team worried he might sue.
Despite our fears, we made the termination decision but ran into a stumbling block -- Christmas. If this turns into a legal battle, we're worried how it will look to a jury or regulatory group that we fired the employee right before Christmas. At the same time, we're concerned that the employee may get wind of what we're up to because we can't help treating him differently now that we have finally decided. Also, several managers want to put a classified ad on Craigslist for his replacement but we're afraid he'll figure out what we're doing even if we leave our company name off the ad.
How do we handle the next couple of weeks?
A: Most employers delay termination decisions until after Christmas because they don't want to look like an unfeeling Grinch or spoil a soon-to-be-former employee's holiday. This places them in an odd situation -- supervising someone they want gone.
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For ethical reasons and because you fear a lawsuit, treat your employee with good will and good faith. Some situations turn around when they hit bottom. Continue to give your employee the chance to meet expectations by outlining the performance you need from him and, if he surprises you with good performance, rethink your decision.
If you fear litigation, avoid placing the Craigslist ad. If your employee sues for wrongful termination, your documentation of his problems and fair treatment of him form your defense. With enough documentation of this employee's performance problems, you can petition the judge for a summary judgment in your favor and avoid lengthy litigation.
Washington courts recognize the covenant of good faith and fair dealing which protects employees from unfair actions. Advertising for your employee's replacement before you've spoken to him shows bad faith and might lead the judge to decide the situation needs to go before a jury.
Finally, if his firing comes as a complete surprise to your employee, you've failed him. Many months ago you should have let him know his actions placed his job in jeopardy -- so he had a chance to improve.
Q: I got a pink slip for Christmas and I intend to let this situation go viral.
Last Monday when my boss asked me if I had done my Christmas shopping, I thought he was being unusually friendly. The next thing I knew he said he thought the fairest thing to do would be to tell me he would pay me through the end of the week but that he was letting me go.
While I stood there in shock, he said he wanted to catch me before I had done my Christmas shopping because if he had waited until I had spent a lot of money for Christmas when he knew I would be losing my job, he would feel like a heel.
I asked him to give me a reason and he kept saying it just wasn't working out. I pressed him for details and he reminded me I had taken some work days off in October and November to drive to Seattle to help out with Occupy Seattle and had urged co-workers to leave Wells Fargo and Bank of America and join credit unions. I asked what that had to do with my job and he said I just wasn't the right image for his customers and I wasted co-workers' time with my political views.
Is this legal? And what can I tell others fired for being part of Occupy protests?
A: Washington employers have the ability to fire employees "at will," meaning for any reason or no reason, unless they violate an employee's legally protected rights or otherwise unfairly discriminate.
Some states, among them California, Colorado, North Dakota and New York, protect employees from being fired for lawful, off-duty activity. Although you have a potential case under your employee right to freedom of off-the-job association, Washington law doesn't offer specific protection for lawful, off-duty activities.
According to attorney Peter Gillespie, an employer can lawfully conclude that an employee's conduct outside the workplace conflicts with the company's values and legally fire him. Further, your employer can make a case that you brought Occupy Seattle into your workplace by lobbying your co-workers.
-- Lynne Curry is a management trainer, consultant and president of Alaska's The Growth Company Inc. in Anchorage. Email her at email@example.com.