Managers must master art of firing

Sunday, October 4, 1998

The Cincinnati Enquirer

Getting rid of unproductive or ineffective employees is probably one of the tougher tasks facing small-business owners.

Managers will procrastinate, rationalize or transfer problem employees to avoid the task. In most cases, terminating the ineffective worker will become inevitable, but by then, it is handled with the baggage of unspoken animosity and obvious hard feelings.

"Difficult? Somebody told me once that your stomach is supposed to hurt when you fire somebody," said Greg Ossege, partner at Rohrkemper & Ossege, a certified public accounting firm with a client base of closely held small businesses.

"It should never be a comfortable situation when you fire somebody. But sometimes, it has to be done, and there really isn't any good way to do it. "

Seeking legal or other advice before terminating a worker is the best way to go for the average small-business person, Mr. Ossege said.

"There are a couple of really simple absolute rules when you go to fire somebody," said David Kothman, a lawyer at Santen & Hughes who has represented employees and employers alike in hundreds of lawsuits with roots in wrongful firing charges.

Mr. Kothman, who has given about 40 lectures to small-business groups, bar association seminars and continuing management groups in 15 years, said the best strategy to get rid of a bad worker and minimize the potential for a lawsuit is the following:

  • Employers boost chances of a lawsuit or a filing at the Equal Employment Opportunity Commission by appearing to act unfairly. "If an employee thinks he has a raw deal, he is more likely to go to a lawyer or civil rights attorney," Mr. Kothman said. "You can be unfair, but your chances of a lawsuit go up in direct proportion."

  • Avoid public announcements and public displays of power. "When there's a meeting that so-and-so was just fired because he was under the influence of drugs, and we won't tolerate it, and we're making him an example, that leads to a defamation charge almost all the time," Mr. Kothman said.

  • Do not put the termination in writing. "That gives the employee a stationary target," he said.

For lawyer David Mann, who frequently represents terminated workers, employers these days need no tips on proper termination procedures.

Some, he said, are increasingly firing pregnant women, despite a federal family leave act that protects employment for pregnant workers. "I have one case, the boss kept saying to her, "So how long are you going to be gone?' " Mr. Mann said.

"She wanted her full 12 weeks and before her time came to leave, she was told: "Do not come back. You have not performed.' We are seeing more and more people facing pregnancy discrimination."

Inappropriate termination of workers older than 40 and for racial reasons are also growing categories, Mr. Mann said. Those cases are not guaranteed winners, either, he said, because employers generate paperwork purporting to document business reasons for the termination.

"African-Americans are routinely the victims of discrimination and tell some horrible stories," he said. "I had one case at a retail operation where the assistant store manager was using racial epithets all the time.

"The employee went to the manager of the store and was told the matter would be dealt with. The next thing he knew, the assistant manager was the manager of the store. My guy left."

John Eckberg covers small-business news for The Enquirer. E-mail him at jeckberg@enquirer.com or call at 768-8386.

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