To Fire or Not to Fire & How to Fire: These are the Questions — Interview with Professor Ross Runkel
With forty years of experience arbitrating and mediating cases involving terminated employees, Ross Runkel has a unique perspective on what works and what doesn’t work. He is an attorney, former law professor, arbitrator, and inveterate blogger on current issues in labor and employment law.
Ross will be presenting at the HR Specialist Summit in Las Vegas in September.
Jathan Janove: Ross, in addition to your research as a professor, you’ve arbitrated or mediated numerous labor and employment law cases. What’s the craziest discharge case you’ve encountered?
Ross Runkel: A police officer crashed an employer-owned car, got out, walked to the airport, and flew across the country on a pre-planned vacation. Soon after the wreck and later after his plane landed, the officer made phone calls that made it sound like he knew nothing about it.
During the employer’s investigation the officer claimed he had amnesia immediately after the wreck and for several days after that. The officer was discharged for lying during his post-wreck phone calls and lying during the employer’s investigation.
During arbitration, the employer presented surveillance camera tapes plus telephone voicemails that failed to show any physical signs of amnesia, and the officer seemed to remember everything about what his vacation plans were. Reports from two doctors failed to demonstrate that there was any amnesia. As the arbitrator, I found that the officer had been lying, and I upheld the discharge.
Jathan: What are the principal reasons employers so often misfire on firing?
Ross: Inconsistency triggers a lot of discharge litigation. An example of inconsistency over time is when an employee has a series of favorable performance reviews and then gets discharged for poor performance. (Maybe the supervisor couldn’t face up to a problem earlier on, or the supervisor didn’t want higher management to know there was a problem.) How will you explain this to a jury? Won’t the jury suspect something more nefarious?
Inconsistency between one employee and another is the basis of many lawsuits. The discharged employee will see this as being unfair (which it may be), and will look for a reason to sue. If there are differences in race, gender, etc., then the litigation risk can be quite high.
Once a discharge decision is made, bad execution invites more trouble. One thing to avoid is rudeness or insensitivity, such as waiting until 5:00 pm on Friday, and having a security guard oversee the employee’s departure. And why fail to tell the employee the true reasons (or any reasons)? When a jury sees this, they may suspect the worst. It’s better to be truthful and accurate form the beginning.
Jathan: Can you distill your experience into a list of Discharge Do’s and Don’ts?
Ross: Do these things:
- Be clear as to what the expectations are. Huge employee handbooks might be pretty, but be sure employees know the “short list” of key expectations.
- Do what you can to help employees meet expectations. Don’t just give orders.
- Be clear as to the consequences of not meeting expectations. Give fair warning that certain conduct can result in discharge.
- Be consistent from one week to the next. Be consistent from one employee to the next.
- Execute the discharge decision in a respectful manner.
Don’t do these things:
- Don’t give problem employees good evaluations.
- Don’t let problems drag on without taking corrective action.
- Don’t say anything that is not true, or that you don’t want a jury to hear.
- Don’t focus all your documentation on one employee. (See #4 above.)
- Don’t execute the discharge decision in a way that adds insult to injury.
Jathan: Thank you, Ross. Any other advice or suggestions for our readers?
- Hire the best.
- Help them succeed.
- Praise desirable behavior.