Firing Without Progressive Discipline

​Sabrina is the director and head of human resources in a 400-employee manufacturing plant, and she's faced with a nightmare scenario: an operational vice president and her executive assistant who can't or simply won't get along with one another. The vice president, Ellen, wants to fire the assistant but has never documented any performance problems. There are no progressive disciplinary warnings on file, and the executive assistant's performance reviews all say "meets expectations." How should Sabrina guide both parties through such a quagmire, especially when she knows that the subordinate, Jasmine, is over 40, diverse and could file a lawsuit? 

"If there ever were a case where HR should call an employment defense attorney for advice and counsel, this is it," said Sharon Bauman, partner at Manatt, Phelps & Phillips in San Francisco. "These are exceptionally tricky cases, and, structured the wrong way, they can lead to significant liability. Each case must be determined on its own merits, considering your organization's policies, past practices and the documented performance record in place. Proceed with caution and attempt to protect your internal written communications and drafts using the attorney-client privilege to minimize the chances of their being legally discoverable in litigation."    

The Honest Assessment

Neither Ellen nor Jasmine is happy. They don't get along, they irritate one another and they look at the world totally differently. But Ellen has been totally remiss in documenting the problems she's had with her subordinate's work performance and conduct in the past, so she's not going to get an immediate termination for cause. Instead, she must be reasonable, and the company must be flexible when engaging Jasmine in discussions about the situation and when considering a separation package.

To begin, Sabrina's discussion with Jasmine might include options such as asking her to:

1. Re-engage and recommit to the company and her role.
2. Continue to do her job while she searches for a new job.
3. Resign and accept a separation package.
   

The first option may not be what Ellen wants, but this is no time to railroad someone out of the company, especially since Ellen has been remiss in keeping track of performance problems.

"Had the VP documented the performance and conduct problems as soon as they occurred in the past, your company wouldn't be in this situation to begin with," said Jeff Nowak, employment attorney and shareholder at Littler in Chicago. "And don't expect HR or anyone else to come to your rescue in terms of making someone magically disappear. No one can force the executive assistant to sign a release, and if she opts not to sign and your company later takes some adverse action by terminating her, you could wind up with a retaliation claim on your hands in addition to wrongful termination, discrimination and other charges."

The Conversation

Instead, Sabrina's offer to engage in a negotiation with Jasmine requires Sabrina to be willing to respect Jasmine's decision, even if it means honoring her request to renew the working relationship and not resign or commit to launching a job search. Here's what Sabrina's discussion might sound like, with either Ellen or Ellen's boss present as a witness: 

"Jasmine, it doesn't appear that your working relationship with Ellen is going as well as would be expected, and I'm guessing that neither of you is particularly happy, especially in light of last week's incident. I just want to throw some thoughts out for your consideration. First, if you're totally willing to recommit to your role, your boss and the company, we'd be happy to help facilitate that, but we'd have to issue a written warning for last week's incident. On the other hand, there's a larger opportunity here for your consideration: Would exploring other opportunities outside the company while you're still employed make sense for you at this point in your career? Or would leaving now on your own terms be a better exit strategy? 

"I'm asking because I want you to have options, especially if you're not all that happy coming to work every day. If you'd prefer to step down from your role, Jasmine, I'll also offer one more idea for you to think about. We could consider putting together what we'd call a 'separation package' for you. We would typically model it on the severance formula, which states that an employee is eligible for two weeks of severance pay for each year of service. As a two-year employee, you would be eligible for four weeks of severance.

"However, since it's a separation package and not severance, we don't have to follow that exact formula. Therefore, rather than offering one month, we would be willing to offer you a three-month separation package. Further, we wouldn't contest your unemployment claim. If you choose to go that route, we would ask you to sign a release, which is a hold-harmless agreement confirming that you waive your right to sue the company for any disagreements or other issues. You could communicate your decision to your teammates however you'd like, without telling them about the separation package.  

"What's important for you to remember, though, is that this is all strictly up to you. We'll accept whatever decision you make. If you were to tell us that you'd rather remain employed and give our relationship a new chance, we'll all commit to reinventing ourselves and starting anew. If you decide that you'd rather remain employed and look for another job on company time, so to speak, we'll be OK with that, as well, as long as you keep us as your priority and always give us at least 24 hours' notice if you need to be out so that we could arrange for back-up support. And if you decide that you'd rather accept a three-month separation package in exchange for a release, we'd certainly accept that, as well.

"There's no need to come to a decision right now. Feel free to think about this, sleep on it and let me know how you feel about it. And of course, you could speak with me one-on-one in HR at any time to discuss the matter confidentially. In fact, you're more than free to discuss it with an attorney to make sure you understand your rights. Again, we want you to handle this however you feel most comfortable and not feel any pressure to rush to make a decision. Maybe you could let me know by the end of the week? This way you could discuss it with your family and friends and give it ample consideration, OK? Thanks for coming into this meeting and discussing this with us today."

Mission accomplished: You offered a compelling package for a two-year employee, and by offering a release in exchange for this separation package, you'll have done your company and your employee a great service. More importantly, you have handled the matter professionally, respectfully and without drama. No, this isn't the perfect ending, but you have restored respect to the employment relationship and potentially insulated your organization from broader liability. Allowing employees to walk out of the company on their own terms with their dignity intact is often the best medicine for an unhealthy relationship.

Paul Falcone (www.PaulFalconeHR.com) is CHRO at the Motion Picture & Television Fund in Woodland Hills, Calif., and author of 101 Tough Conversations to Have with Employees: A Manager's Guide to Addressing Performance, Conduct, and Discipline Challenges (HarperCollins Leadership, 2019).