From the ArcaMax Publishing, At Work Newsletter:
http://www.arcamax.com/news/atwork/s-372508-946161
Q: I have heard of instances in which people received e-mails telling
them their jobs were being terminated. That is so insensitive it is
beyond my imagination. I also hear about companies holding back money
that is due. I understand when companies downsize when things get
tight, but I also have heard people say they were laid off because
they were older and highly paid, and the downsizing was an excuse to
cut them. It seems that some of these things should be illegal for
companies to do. How do we, as employees, protect ourselves?
A: The following advice was intended for employers to do the right
thing, but it is crucial for employees to know the same information so
they understand their rights when they are confronted with being let
go. Shock hits when an employee is not expecting to be laid off, but
one needs to take an intellectually active role when the situation
occurs.
"Nearly 90 percent of discrimination charges filed with the Equal
Employment Opportunity Commission (are) discharge-related claims. The
reasons are obvious: terminations cause hard feelings, create economic
need, provoke plaintiffs' lawsuits, and remove the powerful
disincentive to sue inherent in an ongoing working relationship,"
according to James W. Bucking, co-head of the employment department at
Foley Hoag LLP in Boston and author of "Ten Must-Do Steps When Letting
Someone Go." Six- and seven-figure damage awards are not uncommon. In
short, people have nothing to lose and often stand to gain by filing
lawsuits. Bucking recommends critical steps for employers to protect
themselves from litigation, but employees must be aware of their
rights, as well.
"1. Know the facts." Management should talk to supervisors, co-workers
and subordinates and take accurate notes on what's said. They also
should talk directly to the employee at issue.
"2. Review the documents." Stellar performance reviews, even if they
were inflated, need to be considered before firing a person.
"3. Create new documents. … Don't fabricate or back-date." Some
files have too few documents to support the reasons for termination.
"4. The electronic scourge. Technology can be your friend, or your
enemy" and creates a permanent record that can be revealed in the
litigation discovery process.
"5. Tell the truth. This advice is not moral, but legal."
"6. Don't be gratuitously cruel. … If a case goes to trial, it does
not play well before a judge, and especially a jury, for an employer
to appear cold-hearted."
"7. Conduct the termination in a respectful way." One plaintiff won a
million-dollar judgment from his former employer because he was
devastated by being fired in front of his co-workers.
"8. Have back-up. At least two people should be present for the
termination and both should take detailed notes."
"9. Pay all compensation due. Wage claims are one of the fastest
growing categories of employment litigation. Wage laws tend to favor
the employee, substantially and procedurally, often allowing the
employee to recover double or triple damages, litigation costs and
attorneys' fees, and civil and criminal fines." For example, in
Massachusetts and many other states, all compensation owed to an
employee must be paid on the day of discharge.
"10. Think about other agreements and commitments, real or potential.
Although most employees are at-will, there are nonetheless agreements
between the employer and employee that you should revisit at the time
of termination. … Make sure you (the employer) understand and comply
with any obligations you have to the departing employee, and make sure
(the employee) understands any obligations (he or she) has to the
company."
Please send your questions to: Lindsey Novak, c/o Creators Syndicate,
5777 W. Century Blvd., Suite 700, Los Angeles, CA 90045. E-mail her at
LindseyNovak@yahoo.com, or visit her Web site at www.LindseyNovak.com.
To find out more about Lindsey Novak and read features by other
Creators Syndicate writers and cartoonists, visit the Creators
Syndicate Web page at www.creators.com.