Managers have a tendency toward three inconsistent behaviors that can result in lawsuits for job termination.
In a job termination, do it to one-do it to all
First, supervisors don’t always practice something called “ditto, ditta”. This means do it to one, do it to all. The attorneys will tell you in terms of your procedures that you’re better off consistently wrong than being inconsistent. Now, what HR will tell you in terms of firing and make exceptions, do it to one, do it to all and make exceptions, Those of you that dealt with HR, you’ll know that you can’t get a straight answer from HR. That’s because they live in the gray area. They always tell you it depends. And as managers, you want that kind of flexibility. You want to make exceptions. But you want to make exceptions based on performance, or based on behavior. You want to reward and make exceptions for the person who goes well above and beyond what is asked of him or her. And that might upset some of the workers who are underperforming. That’s OK; if you treat the bad employees the same way you treat good ones, then you wind up sending the wrong message.
Second, supervisor makes an exception to a job termination decision based on “the list”. “The list” is made up of any protected group, such as age, race, sex, religion, national origin, disability, etc. Again, you can’t fire them. They’re on the list. “I can make exceptions based on performance, based on even behavior. I’ll give you a working behavior standard that you can use to manage, hire and especially fire if you have to. But I will make exceptions but not based on age, sex, race, religion, national origin or disability.”
If opposing legal counsel gets this sense that you make job termination decisions based on “the list”, they’re going to go after you for it. If you tell them that you would have fired them sooner if they were a young white male, then that proves you use “the list” when considering employee terminations. Look at the list — age, sex, race, religion, national origin, disability. Everybody is on it. If you’re afraid of firing these people, there’s nobody left. So, you’ve got to get out of this hang up with “the list”. It’s not that you should ignore age, sex, or race but look at your employees as a package of skills. The company hires based on the package of skills. The company make a job termination based on performance
Practice what you preach with a job termination
The supervisor doesn’t practice what he or she preaches. You’ll see that it affects job termination as much as it affects your day in, day out management. If you let an employee get away with being late for several years, it sets a precedent that spreads so that suddenly it becomes okay for anyone to come in late. If you’re going to have procedures, you have to stick to them, and if necessary, break the implied contract with the person who’s always late.
These are the edited remarks from the Rapid Learning Institute webinar:
“Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” hosted by Hunter Lott, Esq. on September 22, 2008
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