Can You Really Say
Can You Really Say
"You're Fired!" Donald Trump-Style and
Not Expose Yourself To A Lawsuit?
By Charles H. Goldstein Esq.
The Goldstein Law Firm P.C.
Century City, CA
On the popular reality TV show "The Apprentice", billionaire entrepreneur Donald Trump tells contestants who don't pass his arbitrary test for success "You're Fired!" and with a dismissive waive of the hand they are off the show. Can an employer in the real world act like Donald Trump? The answer is Not Really. In an employment law environment that has developed over the past 20- years, any firing can trigger a costly lawsuit and subject your decision making to review by a court, a jury composed of individuals who are traditionally unsympathetic to employers, or by administrative agencies, such as the Department of Fair Employment and Housing, Equal Employment Opportunity Commission. Courts, juries, and administrative agencies have awarded millions of dollars in damages to fired employees and have generally shown a lack of understanding about why business people fire employees. Even if you are a comparatively small company, these decision makers hold you to the same standards as the largest corporations in the land. They expect you to have a policy for every situation and be able to prove conclusively that the employee deserved the ultimate sanction of discharge.
As a lawyer of 40 years, who started practice in Santa Fe Springs many years ago, long before I moved to Century City, I have coached many managers in the public and private sectors of our economy through difficult firing decisions and have had to defend employers from the consequences of their decisions. From my experience, the way to minimize your risk of being a victim of a costly employee lawsuit for wrongful firing and /or discrimination, is to view each firing from the eyes of an objective third party and determine in your own mind whether your firing process was ethical, fair, and transparent. If your other managers, your family, or your best friend would not clearly understand why you fired someone, then you should find a lesser form of discipline to deal with an employee. Only fire employees when they have violated your trust and the employment relationship or as the last step in a process of corrective action, where the employee is unwilling or unable to correct his or her performance. When I speak of firing, I am excluding layoffs for lack of work or lack of funds. Firing in this article is limited to dismissal due to any employees misconduct or performance problems.
In order to fire without fear and to minimize your exposure to a successful employee lawsuit you should avoid making the "15 Most Common Firing Mistakes." What are they?
1. Believing that you can arbitrarily fire any employee because they are an at will employee. All private sector employees in California who do not have employment contracts with specific terms, or employees who are covered by union contracts with for cause termination provisions, are so-called "at-will employees". At-will employees can be fired for any reason or no reason at all as long as the reason for the firing is not unlawful. However, courts and our Legislature have made so many exceptions to at-will employment. For instance, an at-will employee can claim that they were harassed or discriminated against because of their race, sex, national origin, age, disability, marital status, because they were pregnant, or for any number of other reasons. As an employer, if you don't have a legitimate nondiscriminatory provable business reason for terminating an employee, the employee can claim some form of harassment and/or discrimination and force you to defend yourself.
2. Acting too quickly and firing an employee without a thorough impartial investigation of the facts that support the firing.
3. Acting too slowly to fire someone and appearing to condone the employee's actions, creating suspicion that the employee was fired for another reason when you ultimately take action.
4. Failing to adequately and thoroughly investigate the allegations against the employee before taking action.
5. Failing to adequately document the investigation and termination.
6. Failing to follow your own written termination policies.
7. Failing to give the employee an opportunity to take corrective action, where appropriate, before termination.
8. Failing to take action against other employees for the same offense.
9. Failing to consider alternatives to termination in appropriate cases.
10. Failing to give the employee the "real reason" for termination or providing a false or misleading reason for termination to a government agency, such as the Employment Development Department, EEOC, or DFEH.
11. Failing to fully consider the legal impact of laws barring discrimination based on race, sex, age, disability, family medical leave act, pregnancy disability leave, ADA, and workers compensation, as well as laws protecting whistleblowers.
12. Failing to have a witness present when you fire someone.
13. Failing to accord dignity to the employee being fired during and after the firing process.
14. Giving letters of reference to terminated employees that praise positive qualities, but misrepresent their qualifications or conceal their shortcomings or misdeeds.
15. Discussing the firing with persons who do not have a need to know, that could lead to a lawsuit against you for defamation, breach of the right to privacy, and negligent/intentional infliction of emotional distress.
By planning to avoid the 15 firing and post firing mistakes that lead to costly lawsuits, you can successfully say "You're Fired!" without fear of costly lawsuits, even if you are not Donald Trump.