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How to Terminate an Employee 
Without Legal Consequences
Injustices that 
the law will 
rectify are 
dwarfed by the 
injustices it will 
not. We 
generally 
consider non-actionabl...
Employment Injustices 
the Law Will Remedy 
• Employment contract 
– Specific duration 
– Requiring cause for dismissal 
•...
Improperly Motivated 
Terminations, Demotions, 
Reassignments, Etc. 
• Support for a union 
(NLRA) 
• Race, color, religio...
• median awards 
– $151,800 men 
– $75,000 for women (’88-’95) 
• ’88 - cost of litigating 1 case averaged 
$80K 
• ’92 st...
• distributive justice, or 
the perceived fairness 
of outcomes 
• procedural justice, or 
the perceived fairness 
of the ...
• negative experiences with 
supervisors; 
• Belief that processes used by the 
supervisor are unfair. 
• violations of pr...
• unfair treatment carries a message of social exclusion, 
threatening social identity 
• extremely unfair treatment, carr...
the greater hardship 
associated with job loss, 
the greater impact fairness 
judgments have on 
seeking redress
• Shorter notice of 
impending termination 
increases claiming 
thoughts and actions. 
– learn of dismissal when 
company ...
Naming, 
Blaming and 
Claiming 
• “claiming” is a 
multistage process. 
– Begins with perception 
that the event is 
injur...
Though claimants' 
actions may be 
driven primarily by 
loss, suit will not be 
brought under the 
contingency-fee 
paradi...
• unfair, insensitive treatment at the 
time of termination had twice 
effect of next most potent factor 
in bringing suit...
• people react to 
nuances of 
treatment and 
style at the time 
of termination 
• quality of the 
dismissal will 
affect ...
Employees 
terminated in 
most 
disrespectful 
fashion 
• May seek to use 
litigation to force 
former employers 
into a n...
Non-Monetary 
Offers of 
Assistance 
• good treatment of laid-off 
or fired employees 
– Give several weeks advance 
warni...
Assistance with 
the Financial 
and Personal 
Crisis of Job 
Loss 
• extend insurance 
benefits 
• offer generous 
severan...
You Didn’t Think We’d 
Ignore the Employer 
Did You? 
• Interests 
– Fear of other claims 
following this one no matter 
h...
The Employer Seeks 
Fairness as Much as 
the Employee 
• The way in which we respond to 
adversity "often reflects the fac...
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How to Terminate Employees without Fear of Litigation

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The severance agreement will not necessarily protect you.

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How to Terminate Employees without Fear of Litigation

  1. 1. How to Terminate an Employee Without Legal Consequences
  2. 2. Injustices that the law will rectify are dwarfed by the injustices it will not. We generally consider non-actionable injustices to be frivolous claims. The parties’ “interests” almost always include non-actionable injustices which mediation can address. Actionable injustices World of Injustice
  3. 3. Employment Injustices the Law Will Remedy • Employment contract – Specific duration – Requiring cause for dismissal • Termination, transfer, etc. that infringes on specific public policy interest (exception to at will doctrine) – Refusing to act improperly – refuse to engage in unlawful conspiracy – Exercising a right (filing workers’ comp claim) – Whistle blowing (complaining about misdeeds) – Performing public duties (jury duty)
  4. 4. Improperly Motivated Terminations, Demotions, Reassignments, Etc. • Support for a union (NLRA) • Race, color, religion, sex or national origin (Federal Civil Rights Act) • Age; veteran status, disability, pregnancy, indebtedness (federal & state laws) • Sexual or gender preference (California) • Quid pro quo or hostile environment sexual harassment
  5. 5. • median awards – $151,800 men – $75,000 for women (’88-’95) • ’88 - cost of litigating 1 case averaged $80K • ’92 studies -- general reluctance to terminate poorly performing employee for fear of suit • Research in accident cases shows the further litigation proceeds, the more distasteful the experience for plaintiffs ) • plaintiffs frequently prevail – 64 percent of the time when the plaintiffs are executives; and, – 42 percent of the time when they are general laborers
  6. 6. • distributive justice, or the perceived fairness of outcomes • procedural justice, or the perceived fairness of the procedures by which outcomes are determined • interactional justice, the perceived fairness of the nuances of interpersonal treatment.
  7. 7. • negative experiences with supervisors; • Belief that processes used by the supervisor are unfair. • violations of procedural justice • perceived violations of equity and distributive justice • perceived violations of interactional justice • survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
  8. 8. • unfair treatment carries a message of social exclusion, threatening social identity • extremely unfair treatment, carries message of rejection • Resulting loss of self-esteem provokes vendetta effect
  9. 9. the greater hardship associated with job loss, the greater impact fairness judgments have on seeking redress
  10. 10. • Shorter notice of impending termination increases claiming thoughts and actions. – learn of dismissal when company AmEx card is rejected at a restaurant – Learn of dismissal when return to office after lunch and find someone taking name plate off the door • Failure to provide assistance in finding new employment increases claiming thoughts and actions.
  11. 11. Naming, Blaming and Claiming • “claiming” is a multistage process. – Begins with perception that the event is injurious. – potential claimant must then blame someone other than themselves for the injury – potential claimants must possess the will, the means, and the know-how to pursue their claims.
  12. 12. Though claimants' actions may be driven primarily by loss, suit will not be brought under the contingency-fee paradigm unless the attorney believes there will be a sufficient financial pay-off to justify the attorney’s time and expense.
  13. 13. • unfair, insensitive treatment at the time of termination had twice effect of next most potent factor in bringing suit. • Blame not strongly related to the claiming process • Some, but slight, support for proposition that certain groups are especially likely to sue – Women’s, minorities’, and union workers’ reasons lay as much in perceptions of poor treatment as in perceived likelihood of success • Best predictor of willingness to file claims was highly educated respondents
  14. 14. • people react to nuances of treatment and style at the time of termination • quality of the dismissal will affect people’s decision to bring suit as much as termination itself. • fair, honest, dignified termination should reduce the temptation to retaliate through litigation.
  15. 15. Employees terminated in most disrespectful fashion • May seek to use litigation to force former employers into a negative relationship to retrieve some of the social identity lost by a demeaning dismissal • the litigation, once undertaken, will likely continue until the employee feels some return of the social identity they lost in the termination experience
  16. 16. Non-Monetary Offers of Assistance • good treatment of laid-off or fired employees – Give several weeks advance warning – provide help in finding new employment – Give honest accounts – provide transitional alumni status when possible – provide symbols of positive regard such as letters of reference, departure gifts or parties – offer counseling to ease the psychological shock of employment termination We can’t afford a golden parachute but Stanley here is working on a nice paisley umbrella
  17. 17. Assistance with the Financial and Personal Crisis of Job Loss • extend insurance benefits • offer generous severance packages • provide financial planning services • Offer ombuds programs • Referral services • Job re-training resources • Revamp personnel policies • Name something after the person; retire his employee number; give certificate of merit, etc.
  18. 18. You Didn’t Think We’d Ignore the Employer Did You? • Interests – Fear of other claims following this one no matter how good the confidentiality provisions – Sense of being extorted – Sense of vulnerability – Fear of being “wrong,” i.e., that personnel policy or practices & procedures not up to par – Management’s fears of being blamed – Sense of injustice – Often paternal or maternal attitude toward employees & feelings of ingratitude
  19. 19. The Employer Seeks Fairness as Much as the Employee • The way in which we respond to adversity "often reflects the fact that [our] prestige or status has been threatened more than the fact that [our] purchasing power has been diminished." Miller, Disrespect and the Experience of Injustice, Annual Review of Psychology (2002). • In other words, the corporate C.E.O., like any other kid on the block, will retaliate when he feels he has been disrespected. • Conversely, research shows that business people are reluctant to recommend legal • action if they believe that they and their company have been treated respectfully. • Every commercial interaction, we are told, "represents a social exchange and every form of social behavior represents a resource." Id. • People's satisfaction with the outcome of a commercial transaction therefore "depends highly, and often primarily, on their perception of the fairness of those outcomes." Id. Copyright 2006 Charles Fincher Scribble-in-Law at LawComix.com

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