War is deceptive: you may think you are strong and that you are making advances against an enemy, but time may show that you were actually marching into great danger. You can never really know, since our immersion in the present deprives us of true perspective. The best thing you can do is to rid yourself of lazy, conventional patterns of thinking. Advancing is not always good; retreating is not always weak.
To waste your time in battles not of your own choosing is more than a mistake, it is stupidity of the highest order. Time lost can never be regained.
Robert Greene, The 33 Strategies of War
As an employer you seemingly hold all the cards. You can terminate an employee for failing to perform or for no reason at all. Employees work for you “at will” — as long as you want them to.
Life is not so simple. Terminating an employee can be an act of war. You have just deprived someone of their livelihood. You may have wounded their pride. And you may have embarrassed them. Never be surprised when such a person strikes back at you.
As an owner, manager, or human resource professional, you are a risk manager. You must know the law and, equally so, the laws of human nature. Ignore either and you may find yourself in court — wasting time and treasure.
This article provides you with a risk management tools to make employee termination decisions. Understand when it is better to bide your time rather than to act in the moment. Follow these guidelines and keep your time, money, and sanity. Leave bad decisions to your competition.
“It’s who you know and who you blow.” This tasteless comment from one employee to another got the employee fired. Was it a lawful termination? The question was answered last week in Scheidler v. Indiana. However, after six years of court battles I am not sure it really mattered. With the enormous waste of time and money, both sides had lost by then. Only one group had profited — the lawyers.
There are interesting legal questions which arose in the case: what are limits of what employees can say to each other? Was Brenda Lear Scheidler’s crude comment really a complaint about favoritism in the workplace — a “protected activity” for which she should not have been fired?
However, “interesting” legal questions are best left to lawyers. You have a business to run. You cannot do so while litigating against ex-employees. Therefore, let’s examine how Brenda Lear Scheidler’s employer could have avoided the fiasco from the start — and how you can be a good risk manager when faced with difficult employees.
SCHEIDLER V. INDIANA
Brenda Lear Scheidler worked for the Indiana Department of Insurance (IDOI). She sought accommodations for disabilities related to her mental health, including that her coworkers not startle her. She received these accommodations for several years. But on May 28, 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into this workplace incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”
Weeks before she made the comment Scheidler she had applied for a new position. Another employee, Mary Ann Williams, also wanted the job. As Scheidler and others left work one day, they noticed Williams was not at her station. Scheidler then said, “Oh, it looks like Mary Ann is still upstairs in her interview for her government job.”
Her co-worker responded, “Brenda, don’t we all have government jobs? We’re all State employees.”
Sheidler then replied, “Well, I mean for her federal job upstairs … I’m sure she’ll get it because … it’s who you know and who you blow.”
IDOI terminated Scheidler for this comment and one other incident. Sheideler then sued alleging disability discrimination, retaliation, and other claims.
The case went on for six years. The employer prevailed, but only after costly and time-consuming discovery, a trial, and an appeal. With better decision making by company management, Scheidler v. Indiana would never have come to be.
DO NOT FIND YOURSELF IN COURT DEBATING THE MEANING OF “BLOW”
“Another such victory over the Romans, and we are undone.”
A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Someone who wins a Pyrrhic victory has also taken a heavy toll that negates any true sense of achievement.
Pyrrhic victories can hit close to home. Have you ever “won” an argument with your spouse, only to suffer tenfold from the ensuing fallout? Yeah, me too.
Some (mostly lawyers) who read Scheidler v. Indiana will come away believing it was a victory for IDOI. But those of us who know history — and have learned from our experiences — know otherwise. We think: how could we have avoided six years of painful litigation, while at the same time having managed this group of challenging employees?
HOW TO BE A GOOD RISK MANAGER
Risk management requires managers to first identify the risk. Untrained, inexperienced, or impetuous managers lack this skill.
Here are ways to improve your risk management game when disciplining or terminating employees:
- If an employee is a minority or in another protected class (e.g. over 40, pregnant, disability), then there is increased risk of a discrimination claim. For example, Brenda Lear Scheidler had a mental disability that she claimed was the real basis for her termination.
- If there is no record of you having disciplined the employee and/or a history of positive employee reviews, terminating the employee for performance or other “cause” based reasons will be problematic.
- If the employee has recently reported misconduct or harassment, then the risk of a retaliation claim — and liability for your company — is high.
- You will increase the risk of a claim by fudging the real reason for the termination — for example, telling an employee that the company is “restructuring” or “eliminating the position” when in truth the basis for the termination is something else. In court this sort of statement can and will be used against you.
- Patience pays: if you want to terminate an employee, but the immediate risk is too great, it is often best to wait and establish a better record of discipline for a future termination (assuming the employee continues to perform poorly or engage in inappropriate behavior). In 27 years of counseling employers, I have never once seen this strategy fail to succeed.
- Ask yourself: have I been consistent in meting out discipline? Treating two employees with similar offenses differently can be evidence of discrimination.
- Conduct an adequate investigation into the facts before you make a final decision.
- Document discipline; if you do not write it down, it might as well never have happened.
- Understand, employees are permitted by law to criticize management and work conditions. Think twice before firing an employee on the basis of a critical, possibly offensive, comment about the workplace or your business.
- Contact legal counsel if there is any question regarding your strategy or pending decision. A half hour call is much less expensive than a trip to the courtroom.
Court can be a Roman circus. The Scheidler parties actually debated the meaning of “blow.” The judge, in making his decision, went further: “Blow” has various potential meanings. Another Lear famously hurls it without obvious sexual innuendo: “Blow winds …! Rage, blow!” William Shakespeare, King Lear, Act III, sc. ii.
You have control over your workplace. You do not have control in the courtroom. Use the tools provided in this article to make good, informed decisions and your risk of ending up in court will fall to near zero. Operate in the dark, however, and you may find yourself among lawyers and judges debating the meaning of “blow” or some such other random word.
Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com, firstname.lastname@example.org, 602.559.9550, linkedin, or trail running with his dog, Eli.