Breaking Up Is Hard to Do!

Marcianne Kuethen

February 23, 2015

When I was a kid, my sister brought home a female dog from the market parking lot. We named her Colleen and fell in love with her right away. Because spaying wasn’t a thing back then, we soon had puppies as well! My parents weren’t so delighted with these little gifts, however, and we soon found ourselves crying at the Humane Society as we said goodbye to the entire litter. Breaking up is hard to do!

As a manager, if you’re like me, you probably cringe at the thought of having to fire someone. Also, if you’re like most employers, you’re basically a kindhearted person who gets attached to your staff, and the thought of hurting them hurts you. But sometimes, an employee fails to meet the demands of the position, and for the good of your organization, you just have to make a change. Here at Amtec, we are often asked by employers for our advice on the best way to let go of an employee who just isn’t working out. Below are three recent, true scenarios with which you may identify (names and details have been changed to protect anonymity):

1. Preserving an underperformer’s unemployment benefits– Rita, one of Mike’s employees, just hasn’t been able to keep up with the position’s workload. While Mike is unhappy enough with Rita to let her go, he feels compassionate toward her as a person. He doesn’t want her to lose out on collecting unemployment benefits and is wondering whether the best thing to do is to “eliminate her position.” But he still needs to fill the position with someone who can actually get the job done. This raises the question, should you fire someone or let them go and “eliminate their position?” In essence, should you misrepresent your reason for letting someone go in order to protect their future unemployment? If you’re truly laying off someone and are not hiring again for that position, then you’re in no danger. But you should never lie and jeopardize your company’s future just so a former employee can collect unemployment. Read this convincing article by Robin Shea, an experienced employment litigator, that spells out the possible legal ramifications of falsely eliminating someone’s position. Shea also explains how you can still show compassion by legally agreeing not to contest the unemployment claim.
2. Giving an underperformer a good reference–Jean’s administrative assistant, Lisa, who has been with her for two years, is turning out to be great at about 20% of her job but a poor fit for the other 80%. Jean feels that she should fire Lisa but wants to give her good references so she doesn’t damage Lisa’s chance to get another job. Letting Lisa go is a good decision–it’s not helping her to stay in a position where she can’t truly feel successful. Yet it’s logical to wonder, can you give someone good references if she hasn’t worked out well for you? The answer lies in what parts of her performance you can truthfully complement. Lisa is a wonderful people person and would flourish in a job that allows her to assist customers but that doesn’t require her to take too much initiative or give attention to detail.
3. Offering an underperformer a severance package–Len’s company needs to cut costs to keep the business profitable. One particular employee, John, has been underperforming now for years, so Len knows it’s logical to let him go. But John has been with the company for a long time, and Len hates to leave him high and dry. John might have trouble finding another job at his age. One solution Len is considering is to offer John a significant severance package in exchange for having John sign an agreement not to pursue any legal action (e.g., ADA, discrimination, etc.) against the company. You might ask, isn’t it unfair to have to pay an underperformer a severance package to protect yourself from an age discrimination lawsuit? Of course it’s not fair, but it accomplishes the goal of cutting costs and averts a false but costly suit.

Breaking up is hard to do, and often, there’s no perfect fix. Sometimes, you’ll just have to choose the best option available. While we at Amtec do familiarize ourselves with the laws regarding hiring practices, we’re not attorneys and don’t profess to give legal counsel. But we have been doing this for a long time and can help guide you toward a safer path. What seems compassionate isn’t always truthful or safe, what’s difficult doesn’t always need to be condemning, and what’s smart isn’t always what’s fair. Every employment situation presents unique pitfalls, and you must take into account the entire picture before choosing the best solution.

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