ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, February 25, 1996 TAG: 9602270006
SECTION: BUSINESS PAGE: G-2 EDITION: METRO
COLUMN: Workplace
SOURCE: MICHELE HIMMELBERG ORANGE COUNTY REGISTER
George M. Hannen will never forget the day an employer called him in a panic, begging him to come witness the dismissal of an employee.
``That just shows you the fear employers have when it comes to this issue,'' said Hannen, an Irvine, Calif., lawyer. ``It's a real uncomfortable thing to fire someone and they don't know what to do.'' -=r Too often, they end up doing the wrong thing. They listen to the employee's woeful pleas, then counter with company travails. They make up reasons for the dismissal. They humiliate the employee. They get angry when the employee gets angry, opening the door for vengeful acts.
``The biggest problem with discharge is they just don't like to do it, so they do it sloppily and poorly, and leave themselves open for litigation,'' said Hannen, who advises both employers and employees.
Wrongful-termination cases are flooding courtrooms and making employers woozy at the sight of the bill. In California, the average jury award for all termination cases was $488,000 in 1994. For employers who violated public policy, the average jury award soared to $1.7 million.
In an ``at-will'' relationship, an employee can quit for a better job at any time, just as an employer can terminate an employee at any time. The clear exception is if a written contract specifies otherwise.
But the courts have recognized that employers can also breach an ``implied'' contract for long-term employment, or a covenant of good faith and fair dealing. Those have become the basis of many termination lawsuits.
Employers can ``imply'' long-term employment with verbal promises, or things as unintentional as using ``permanent'' instead of ``regular'' to describe employees in the company manual. Hannen said one employee used a company Christmas card to plead his case; it said, ``Looking forward to working with you many more years.''
The ``at-will'' policy has clear limitations, however. An employee can't be dismissed based on age, ancestry, color, marital status, disability, sex, national origin or religious creed.
Neither can employers fire an employee in retaliation for such actions as whistle-blowing regarding employer policies, complaints regarding violations of employee rights, or filing claims for workers compensation or unfair labor practices.
From mergers to restructurings to outsourcing for general services, employers have been whittling the work force. As they let workers go, they expose themselves to legal retaliation from employees - some of whom believe they are owed a job for life.
Companies that have made massive layoffs claim the terminations are made to cope with ``economic realities,'' and some courts have begun to recognize that defense. But companies still must be careful in how they reorganize, or they become vulnerable to litigation.
``If you fire an older, experienced worker and then hire a younger one at less money, that's age discrimination,'' said David Bowman, president of TTG consultants, a Los Angeles-based human-resources consulting firm.
``So you need to realign the business. Redistribute the duties so that you can officially say the job is eliminated,'' Bowman said. ``The new person that comes in should not have the exact same duties. The less of them, the better.''
That's the correct legal position, but what is the corporation's social responsibility in these circumstances?
``That's being asked in boardrooms all across the country,'' Bowman said. ``Some say we have none. Give them all two weeks [pay] and say goodbye. What happens if you do that? Then ``60 Minutes'' or local TV comes to your doorstep and asks why you're such a meanie. Or an unhappy employee sues. You can expect some violence or vandalism, from trouble in the database to chairs through the window.''
It's better to offer a reasonable severance, typically one week for each year of service, preferably more. If possible, offer them job-search assistance. Many older workers haven't thought about their resume in 15 or 20 years.
``If an employee feels he's been properly treated, with dignity, care and concern, they won't like to say goodbye, but they will,'' Bowman said. ``And they'll part amiably. ... If you offer some assistance, research shows people will get back to work in one-half to one-third less time than if they did not have training.''
Hannen, a lawyer with a background in family counseling, recognizes that managers often get caught up in the ``familial feel'' of the employment relationship. It's even tougher in small businesses, he said, where the workplace is more intimate and managers often aren't as well-trained.
Hannen advises employers to be straightforward when terminating employees: Cite the ``at-will'' agreement and don't supply a reason ``because that only suggests you have to have one.''
Daniel Fears, a lawyer with Payne & Fears in Irvine, takes a different approach. ``If you don't give them a reason, you're inviting them to call a lawyer,'' he said. ``Selecting the proper reason and articulating it well are important measures to protect against litigation.''
Though philosophies may differ, experts generally agree on these guidelines for employee termination:
nCarefully write employee manuals so they coincide with your actions, Fears said. The manual - and all documents - should include an ``at-will'' statement regarding employment, ensuring that personnel policies don't inadvertently imply a contract to terminate for cause.
Manuals should clearly indicate that any disciplinary steps taken by the company are discretionary, not mandatory. The employer should retain the rights to change or eliminate those steps.
Be aware of the legal causes of action that can be used to sue for wrongful termination, from discrimination to fraud to invasion of privacy.
Don't be afraid of confrontation, beginning with performance evaluations, Hannen said. Managers should be candid with evaluations and encourage employees to improve in areas where they are deficient. Don't inflate performance.
From evaluations to progressive discipline, put it all in writing.
Don't harass or humiliate the employee on the way out, Bowman said. Clearly state your action, have the employee's final paycheck readily available and allow him or her the dignity to leave quietly.
Make every effort to provide outplacement assistance and a reasonable severance.
LENGTH: Long : 118 linesby CNB