Firing is not an easy business these days. It impacts your workflow to a great extent and you could not afford to go wrong with it. Here are the four most common mistakes management makes cited by our expert in a healthcare training conference.
First – not firing bad people. It's not the fact that we fire people but it's the fact that we don’t fire the people we should. You will find this concept called the implied contract. If you allow inefficiency, poor productivity to go on for a period of time, you may have established an implied contract whereby their inefficiency, their poor productivity is okay.
Secondly, constructed discharge. “Oh, I'm not going to fire him. I'll just make him miserable until they quit.” This is not a safe way to fire. “Oh, we like you just fine. We had to cut your hours to one.” Don’t you really want to take that?” The courts recognize what would a reasonable man, reasonable woman kind of tolerate here. Much the same standard that we see on harassment.
Our expert mentioned in one of the management audio conferences that there are a lot of cases on retaliation where somebody files a worker’s comp claim and employee files a discrimination charge. And the manager takes it upon himself/herself to make the employee miserable.
We've had – not talk to him anymore, won't find any work anymore, have meetings and exclude them for meetings. And then these things get just emotional and legal and crazy to go to court. Here's the employer and the employer wins. There was no initial discrimination, there's nothing there.
But then, the employee also file the retaliation claim. And they look at it. Yeah, the supervisor really did make the guy miserable after he filed the claim. Okay. Employer, yeah, you win the discrimination case but you're right out of check for $800,000 to pay for the retaliation of the act of supervisor.
How frustrating. You've a right. You won your case of discrimination (of the laws) because the supervisor decided this was a time to get even. Don’t make them miserable in hopes that they quit. Don’t retaliate if they file some kind of charge claim worker’s comp. Go out on disability. Retaliation is an easy sell to a jury makes us look really bad.
Thirdly, asking the employee to resign. Don’t fire people for resigning. What? There's a couple of things going on here. One, you go up to an employee and you say, “Resign or you're fired.” That is not a voluntary resignation. Resign or you're fired.
Okay, they filled out the resignation. If they're smart, they go right to the unemployment office. They may or may not get it. Some of us have been to unemployment, it's great documentation and the laws, some have been to unemployment but no documentation into one.
It'll go down as a resignation, but technically, it's going to still turnaround and come after us for firing. Yeah, “Resign or you're fired” is not a safe way to fire.
Healthcare Training Tip: Also this, don’t fire people for resigning. What that make sense. Yeah. Well, here's another problem with resigning. Employee comes in and says, “I never did like you. I quit. Here's my two weeks notice.” And we turn around and say, “Well, we didn’t like you either. Let's just make today your last day.” No claims for unemployment, no claims for discrimination, we turned it down. And then we turn around and fired him. Why? Because they resigned. This isn’t going to play well to the outsider.
Fourthly, the probationary period. Do not be surprised in your operation if HR or your legal counsel takes away your probationary period. Probationary periods and firings and this is a bluff basically. You run the risk with the probationary period of negating your at-will of relationship if you're non-union and non-government.
Now, probationary periods came from union in government. If you're union in government, you'll hang on to it, you'll use it, it means they have no right to grieve. But for the rest of us, private sector, this is a bluff. And all line managers have counted on this for so long. Then literally, you put somebody on probation for as long as they work for you, whether it's one day or 30 years.
Want to stay clear of violation policies and procedures and ensure compliance? Visit our management and healthcare compliance page.