11 things you should do before firing someone

Firing people is the hardest thing a manager or employer can do. Here’s a checklist to help you make it just a little bit easier.

  1. Don’t fire when angry. Take enough time to make sure that you’re not making the decision for emotional reasons.

  2. Choose the appropriate day and time to minimize additional pain. For example, don’t do it right before Christmas, or on the employee’s birthday, or when everyone else is going to be milling around.

  3. Choose a location in the workplace that offers privacy, with the door closed.

  4. If you’re concerned about an angry or violent reaction, have security or another coworker nearby and ready.

  5. Have the employee’s final paycheck ready for the meeting. Include pay for the entire day of the termination, as well as any other money owed. Make sure your payroll people keep the termination secret.

  6. Make sure you include pay to cover any accrued but unused vacation.

  7. If the employee has computer access, make arrangements to have her locked out of the system while you’re in the termination meeting. Not before and not after. And make sure the computer person keeps
    the termination secret.
  8. Prepare what you’re going to say in the meeting, but don’t write out
    an actual script.
  9. If appropriate, prepare a severance agreement to give to the employee. (There’s an example agreement in the book.)
  10. Gather up any material that your state requires you to give to terminated employees. Often, this includes information on unemployment benefits and health-insurance continuation (COBRA).
  11. Decide how much notice you want to give, and how much transition
    time you need during which the fired employee will stay on. Hint: the answer should almost always be “none.”

All of these tips come from Firing at Will. If you ever deal with employees, this book will make your life easier. To order your copy, click any of the following links:

To read Chapter 1 for free, click the link at the top of the page.

Why arbitration sucks — even for employers

In the wake of Major League Baseball’s firing of longtime arbitrator Shyam Das after he ruled against it in the Ryan Braun case, I thought it might be a good idea to examine why this fashionable alternative-dispute-resolution mechanism is deeply flawed.

Arbitration has long been the norm in labor cases (that is, cases between unions and management). And baseball arbitration is of the labor-law variety. But increasingly, nonunionized employers are choosing to subject themselves and their employees to arbitration. Which is dumb.

“Why?” you may ask. I’m glad you asked. Here is my jeremiad on arbitration, from Chapter 12 of Firing at Will: A Manager’s Guide:


Arbitration is much less common in employment cases, and usually only happens when there is a preexisting contract providing for it if there is a dispute. In other words, the employee would have signed an agreement — often at the start of employment — waiving his rights to go to court or an agency and instead having the dispute resolved by an arbitrator.

The arbitrator is chosen by both sides from a list of potential neutrals. In effect, he acts like a judge. Unlike a mediator, his job is to make a decision at the end of the case.

Many employers and management lawyers think it’s a good idea to have mandatory-arbitration clauses in employment agreements. They think arbitration is a good idea because it tends to be cheaper and faster than the agency-and-court system. They believe that arbitration ends up favoring the employer.

But they are wrong.

Arbitration is a terrible idea, for four reasons. First, the less-formal approach to litigating the case, dispensing with the evidentiary rules, means that the employee can bring in evidence that never would have seen the light of day in court. As I said before, rules of evidence are a good thing if you have a lawyer who understands them. Ignoring the rules turns the case into a free-for-all.

Second, there is no precedent in arbitration. In the court system, the judge generally has to abide by past decisions of earlier court cases, especially higher-level courts. Our legal system is based on the authority of precedent. But in arbitrations, there’s no such thing. Yes, lawyers can cite to past arbitration cases for examples of what arbitrators have done in similar cases. But the arbitrator is free to ignore it.

Third, there is almost no ability to appeal a bad decision. I don’t want to overstate this. While you can almost always appeal a bad decision at an agency or in a court, appeals typically have little chance of success. But it’s even worse in the arbitration world. Yes, you can file the equivalent of an appeal in court to prevent the enforcement of an arbitration award. But you shouldn’t bother: there’s next to no chance of it succeeding.

My final reason is the most important (and why arbitrators want to smack me in the nose). Remember how I said a few paragraphs ago that arbitrators are chosen by the parties? That’s the whole problem. If an arbitrator doesn’t get chosen for cases, he can’t make money. And if he gets a reputation as being too pro-employer, plaintiffs’ lawyers will stop agreeing to use him. (Likewise, if he gets a pro-employee reputation, management lawyers will stay away.) Trust me: this happens. At our firm, we had a list of arbitrators that we would never use because we felt that they were too likely to side with the employee.

In court cases, judges are assigned, not chosen. So the judge needn’t worry about acquiring a reputation of favoring one side or the other. But an arbitrator has some pressure to avoid that sort of reputation. This pressure naturally moves an arbitrator to try to come up fairly even-steven over time, with a rough balance of wins for both employers and employees. Sounds fair, right?

Wrong.

Coming out more or less fifty-fifty sounds like it evenly benefits both employers and employees, but in fact it drastically favors employees. Why? Because employees don’t win half of the cases filed. At the various antidiscrimination agencies, the percentage of cases where probable cause is found tends to run in the 5- to 15-percent range. (There are no reliable figures from court cases.) There are a number of reasons for these relatively low success rates.

For example, discrimination claims are inherently difficult to prove; it’s hard to get inside a manager’s head and find a discriminatory bias. Also, many cases are merely disgruntled employees’ weapons of last resort. Many fired employees bring their cases because of anger instead of an honest belief of having suffered discrimination. So a low success rate is to be expected. That’s why a success rate approaching 50 percent, which is more typical with arbitrators, dramatically favors employees.

So if your employment lawyer tries to talk you into arbitration agreements, ask her if she’s thought about these points.


To order your own copy of Firing at Will, which is a wicked-good idea if your ever have to deal with employees, click any of the following links:

To read Chapter 1 for free, click the link at the top of the page.

Why HR might not want to read Firing at Will

Book authors want everyone to read their book. It’s a universal law. They spend a year or longer typing and retyping words, and when they’re done, they want as many people as possible to read what they’ve written. And I’m no different.

But it occurs to me that some people may want to avoid my book.

Firing at Will is listed (and intended) as a management book. My publisher (Apress) even included a handy little instruction on the back cover: “Shelve in Business/Management.” But so far, in every Barnes & Noble store I’ve checked, they’ve filed it under “Human Resources.” And I get that, because as much as it is a book for managers, it’s also a book for HR professionals.

But HR professionals who read it may be in for a surprise. Because the book takes on many of HR’s long-held beliefs, showing how some common practices harm employee morale and business profitability.

Many of the rules and policies that well-meaning HR professionals and employment lawyers put into place lead to toxic, dysfunctional workplaces. These rules are designed to protect companies from bad employees, but they instead drive away good employees.

Instead, the book promotes doing away with outdated management tools that end up becoming crutches for managers and take away their independence and discretion. For example, instead of sticking with these outdated tools, the book advises employers to:

  • Throw out your personnel handbook (the title of Chapter 16)
  • Abandon annual performance reviews (“the dumbest managerial tool”)
  • Dump progressive-discipline policies
  • Avoid performance-improvement plans (PIPs)
  • Stay away from arbitration agreements
  • Treat employees differently

That last one might be the biggest surprise. Employment lawyers are always telling companies to treat everyone the same. But when you do that, you end up treating everyone equally badly.

HR pros who have grown comfortable with these conventional notions may be put off by the shots taken at accepted wisdom.

On the other hand, there are things in the book that many HR people will appreciate. The book advocates for more responsibility and autonomy for human resources. It favors changing “human resources” to “talent” and elevating the role to the C-suite level: “Every company should have a chief talent officer reporting to the CEO.”

If you’re a human-resources professional, or any kind of manager or employer, and you’re thinking about reading Firing at Will, please proceed with caution. Some of what you read might be upsetting to you.

And some of it might just change your mind.


To order your own copy, click the following links:

To read Chapter 1 for free, click the link at the top of the page.

Want to learn more?

Get in touch with Jay today