Articles Posted in Terminations & Layoffs

By Lauren E.M. Russell

The more technological of our readers may be aware of a brouhaha involving a website named Reddit.  Reddit is best known, among the general population, for conducting structured question-and-answer sessions called Ask Me Anything (AMA), in which subjects respond to questions posted by Reddit users. The subjects of an AMA may range from the mundane (a trash man) to extremely high profile politicians, including President Obama. One Reddit employee, Victoria Taylor, was largely responsible for organizing and facilitating AMAs. She was fired in early July, and the resulting firestorm offers many lessons in what not to do when terminating a high profile employee.

What Happened? Who Knows.

I never discuss politics. Never. I don’t have the stomach for it, to be honest, and I avoid the subject like the plague. That said, I did manage to watch part of the Presidential Debate on Tuesday night. There are ample pundits who surely have more insightful (i.e., political) commentary than what I can offer. So I’ll gladly leave the politics to others and stick with what I know–employment law. Here’s one HR-related lesson that I took away from the debate.

One of the hottest topics of post- debate discussion was Mitt Romney’s comment about “binders full of women.” I’ll admit–when I heard him say that, I cringed. It just sounded so wrong.

But I’ll admit that I cringed for another reason. I assume Mr. Romney did not actually plan to say that he’d looked at “binders full of women.” Surely he meant to say that he’d reviewed binders full of resumes of female candidates. But, alas, those were not the words that he said. And now he’s stuck with the ones he did say.

Jason Selch worked as an investment analyst for his employer for 10 years. The company went through multiple mergers and acquisitions and eventually was bought by a Bank of America subsidiary. After the BoA merger, Selch learned that his friend and co-worker had been terminated after declining to accept a pay cut.  

Presumably in protest of his friend’s exit, Selch marched into a conference room where the COO and CIO were meeting.  He asked the executives if he was subject to a non-compete agreement.  When the CIO answered that he was not, Selch promptly dropped his drawers and mooned the two executives.

The two execs, to their credit, weren’t flustered by the demonstration and simply returned to their discussion and went on with the meeting. Later, at the COO’s instruction, HR issued Selch a final written warning, which stated that any subsequent violation would result in his termination.  

When terminating an employee, employers need only one reason. Of course, there is rarely just a single reason for reaching the decision. But the existence of multiple reasons does not mandate that each reason be shared with the employee.  In other words, when an employer makes the decision to terminate, there should be only one reason upon which the employer relies and which is shared with the employee-the “final straw.” When an employer changes its “final straw,” it raises doubts both with the employee and with the court and changing reasons are evidence of unlawful discrimination. 

In Smizer v. Community Mennonite Early Learning Center, the employer told the employee that he was being fired due to a Facebook posting he’d made. But the employee didn’t buy it.  He claimed that he really was fired because of his “tardiness and lack of cleanliness in his classroom.”  He claimed that similarly situated female employees, who also were tardy and who kept equally messy classrooms, had not been fired.

If this claim were true, and there were late and messy female employees who had not been fired and the plaintiff was really fired for these reasons, it would support the plaintiff’s Title VII claim.  So the plaintiff sought the court to compel his former employer to produce documents he claimed would show these failings of his female counterparts.

It happens everyday. Employees are let go for poor performance or lack of work. After the decision to terminate has been made, employers must consider whether to offer the employee additional pay or benefits in exchange for a release by the employee of all claims he or she may have against the employer.

A separation and release agreement is simply the contract used to document the understandings reached by the parties. In addition to the severance payment and release, the employer might agree to provide a neutral reference or outplacement services for the employee. The agreement might also contain an agreement by the employee avoid working for a competitor for a period of time.image

When should an employer consider a separation and release agreement? The following situations are typical:

Our annual employment law seminar, held last month, was a tremendous success.  As promised,  3d man providing informaitonwe posted the first of the presentation slides (COBRA and the Economic Stimulus Package), last     week.  Today, we are happy to deliver the slides from Scott Holt and Maribeth Minella’s “Layoffs and  Reduction in Force” presentation.  

Mark your calendars–our next seminar will be held on June 5, 2009, as part of our Breakfast Briefing series.  Look for more information this week on the topic and registration.  In the meantime, don’t hesitate to let us know if there are topics in particular that are on your radar these days.

For more information on terminations and layoffs,  please see our prior posts, Top Ten Layoff Tips, and Bad Reason #29 to Fire an Employee.

What if your employer announced cut-backs but, instead of announcing who would be subject to layoffs, you were giving the task of making the choice.  How easily could you select which of your coworkers you would “vote off of the island”?   Talk about peer pressure. Talk about cubicle wars!

Would you vote for the employee who never carries his weight?  Or would you invoke the Survivor strategy of voting off the strongest competitors–even though it means you’d run the risk that you’d have to do more or that the business would suffer in the absence of its key performers?  image

Thanks to a  new reality show, viewers can live this decision process vicariously.  In each episode of “Someone’s Gotta Go’,” workers at a struggling business will choose who should get a salary cut or raise and who should be fired based on information about pay and past performance.

Delaware’s largest industrial employer is asking its salaried workers to take at least two weeks’ unpaid leave.  75 of the company’s senior leaders announced that they will take three weeks off without pay in response to the current market conditions.  There are a number of reasons to consider initiating this type of voluntary program instead of involuntary layoffs.  According to the article reported by the Wilmington News Journal:Dupont

Employers appear to be favoring voluntary programs, according to a February survey by Watson Wyatt consulting firm. Eleven percent of the 245 U.S.-based companies surveyed have instituted mandatory furloughs, while another 6 percent expect to launch a program in the next 12 months.  By comparison, 10 percent already have had voluntary furloughs and another 9 percent are expected to ask for voluntary furloughs within the next 12 months, the survey said.

A DuPont representative cited the current preference for flexible work schedules as one reason for its decision to initiate the voluntary program.  Another reason was that it made compliance with foreign laws easier than if an involuntary layoff program had been utilized. 

Layoffs and reductions in force were the topics of a seminar we presented yesterday, during which we reviewed how to plan and implement workforce reductions, requirements for severance agreements and releases, and alternatives to layoffs.shutterstock_21093820

In following up to yesterday’s discussion, here is a list of the “Top 10 Layoff Tips”: 

1. Plan your business first.

The four-day work week is very popular among public employers these days.  Employers who have implemented a compressed work week program successfully say they’ve enjoyed benefits such as saved energy costs, decreased absenteeism, and improved employee morale resulting from the change. 

I don’t believe that a four-day work week is the solution of all solutions, as some have claimed.  But I do believe that there are certain organizations that, because of their structure and purpose, can be good models for the program.  The ideal candidates, though, are almost always government employers.  A mandatory four-day work week, generally, is not realistic in the private sector. image

But does that general proposition lose its vigor in a bad economy?  Can the four-day work week be implemented in the private sector more effectively because of the downturn?  It turns out that flexible schedules can have important benefits in an economic downtime, just as they can in times of fiscal health.  The trick, though, is to get employers to be aware of the opportunities.  

Contact Information