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HIRING AND FIRING

Always ask these 7 questions before you fire a staffer

They are the seven-question solution. They have become the standard for determining whether a firing is justified.

A “no” answer to any one of them leaves room for argument that a dismissal was discriminatory.

They are the seven questions arbitrators ask when settling firing disputes. They are a valuable pre-termination checklist to determine whether a firing is risky.

Administrators need to be aware of them for two reasons.

One is that employees don’t necessarily accept responsibility for their actions and performance deficiencies. Instead, they focus on their rights, and they are sophisticated about the remedies available to them.

The other is the fact that law firms have little room for error in employment law because juries and judges hold attorneys to a higher standard than other businesses, assuming they know the law better than anyone else.

The seven determining questions were established in a 1966 arbitration decision involving the Enterprise Wire Company in Illinois, and they set out the elements that determine whether there is just cause to terminate an employee.

A broken rule

Question 1: Was the termination caused by a violation of a reasonable office rule?

In other words, was there a rule and did the employee know about it? That requirement is well satisfied by an employee handbook that spells out the performance requirements. With a handbook, it’s an easy matter to justify firing someone who hasn’t met a billable hour expectation or has been absent or late too often or rude to clients. The handbook need only set out the basic expectations and then say that all employees must abide by the provisions. Explain the specifics such as the billable hour or quality expectations, and from there get as detailed as the firm wants, even going into things such as how to answer the telephone.

Many rules such as those on client confidentiality and personal use of e-mail need to be in writing, but others don’t. Meeting court deadlines, for example, is a given for a paralegal.

This provision well illustrates the need to get signed statements that employees have received and read the handbook. That’s proof both that there was a rule and that the fired employee knew about it.

Notice and a clear warning

Question 2: Did the firm give the staffer notice or warning of the possible disciplinary consequences of the conduct?

That too should be explained in the employee handbook. Usually, it’s simply a statement that “employees who violate these policies will be subject to disciplinary action up to and including termination.”

But along with that, each warning the firm gives to an employee should be in writing and should repeat the fact that the employee is subject to discipline, including termination. Along with that, the employee should sign a statement acknowledging knowledge of the warning and the consequences of not improving.

The Enterprise arbitration decision does note, however, that for offenses such as theft from the employer or from other employees or intoxication at work, warning is not necessary, because they are serious enough that anybody should expect discipline.

An inquiry

Question 3: Was there an investigation to determine that the employee was, in fact, guilty? If the situation is clear-cut – perhaps a staffer didn’t meet some standard of performance – no investigation is called for. But whenever there’s question as to whether somebody was guilty of a transgression or concern that there could be argument about it, an investigation is necessary. That means interviewing witnesses. But it also means interviewing the accused. Leave that out, and any plaintiff’s attorneys will latch onto the fact that the employer didn’t ask for the employee’s side of the story. You should conduct the accused’s interview with yet another seven questions, and again, all need to produce a yes answer:

a Did you do X?

b Were you aware of our rule prohibiting that?

c Were you aware of our rule at the time you did X?

d Do you agree that it is appropriate to terminate someone for that type of conduct?

e Is there any reason why we shouldn’t terminate you?

f Are you aware of any other employee who did X and wasn’t terminated?

g Is there anything you’d like to tell us?

Ask those questions at the very beginning of the investigation and even put them in writing for the employee to sign. At that point, there’s a good chance the employee will answer yes to everything and possibly sign the statement as well in hopes of leniency in exchange for the cooperation. But once people get terminated, they get angry and their posture changes. The firm will never get those admissions again.

Impartiality

Question 4: Was the investigation fair and objective?

A main factor here is whether the person conducting the investigation was an objective party and not a witness in the investigation. The Enterprise decision states that one person can serve as prosecutor and judge but not also as a witness against the employee. For that reason it’s best to have just one person – usually the administrator – in charge of the investigation as opposed to having several partners conduct parts of it. What if it’s a dispute between the employee and someone in management and there are no witnesses? In that case, the firm needs to question the manager in the same way it questions the employee being fired.

Substantial proof

Question 5: Did the investigation produce substantial proof that the employee was guilty?

There needs to be hard evidence such as e-mails or written records or statements from witnesses.

What’s more, it has to be factual and not conjecture or hearsay or gut instinct.

And it has to be fair. The firm can’t rely solely on what volunteer witnesses say or on statements from persons who have some interest in the matter. Instead, it has to look for witnesses who are unbiased and not associated with the matter. What if there are contradictions in the stories?

That requires a judgment call after looking at the employment history of the conflicting witnesses to determine their credibility.

A fair precedent

Question 6. Has the firm treated similar situations in the past the same way?

Be careful. If another employee was guilty of a similar violation and wasn’t terminated, don’t try to make an example out of somebody now. The question that’s bound to arise is “if the firm didn’t enforce that rule in that past, why is it enforcing it now?” And if the fired staffer is in a protected category such as race or age, here comes a claim of discrimination. If there’s not been enforcement in the past, the only thing fair thing to do is send everybody a written reminder of the rule with a note that starting now, the firm will enforce it. That might happen, for example, if there has been, say, abuse of the e-mail requirements that has been allowed to continue.

An appropriate punishment

Question 7: Does the penalty fit the offense?

Again, look at how the firm has disciplined similar offenses in the past. There needs to be even-handed discipline. Even so, it is okay to look at a person’s work history and years of service and let that influence the firing decision. For someone with a good record and long employment or someone whose record is significantly better than the people who were disciplined earlier, there can be justification for lighter discipline than in the past. It’s also okay to go easier on someone who is difficult to replace, reasoning that the individual is not similarly situated to those disciplined earlier and that the firm would suffer handicap if it fires that person. When that happens, however, there needs to be an internal memo explaining why the individual was not terminated. Or send a memo to the employee saying “normally we would terminate you for this offense” but there’s no termination for such-and-such reason.

Conversely, the firm can be stricter with someone who has been guilty of the same offense or of other offenses in the past. The past record of guilt can’t be used as the basis of determining guilt in the current situation. However, being able to point to earlier similar situations where employees received a similar penalty is good evidence that there’s been no discrimination. With any firing situation, the firm’s surest defense is documentation.

When a claim gets filed, the EEOC (Employment Equal Opportunity Commission) asks the employer for documentation supporting the firing, and if there’s good documentation, the matter usually ends there without a hearing. But if the documentation is poor or nonexistent, a credibility dispute ensues.

Write to the audience– the audience being a judge and a jury. Show them that the firm keeps its employees apprised of where their performance fails. Besides being fair to the employees, that’s a ready escape hatch from a lawsuit. And from a psychological standpoint, people accept responsibility for their failings if they have an opportunity to be successful.

(In re Enterprise Wire Company [Blue Island, IL] and Enterprise Independent Union; Arbitrator Carroll R. Daugherty; 46 LA 359, Mar. 28, 1966)


Editor’s picks:

22 questions a manager should ask before firing an employee


Seven guides for a safe and somewhat pleasant firing


3 proven ways to make firing easier on everyone


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