LETTING AN EMPLOYEE GO IS NEVER EASY. And architects, whose practices are particularly sensitive to changes in the economy, may do more firing than members of other professions. The process isn't just emotionally tricky—it can also have legal consequences. Which is why you may want to consult an attorney like Keith Spiller before sending an employee packing. Spiller, who got his law degree at Wake Forest University in North Carolina, represents hundreds of companies (including several in the design world) from his Cincinnati office. He also heads the employment law practice for his firm, Thompson Hine LLP. That makes Spiller not just an employment expert but also an employer who practices what he preaches. He took time out from giving annual reviews—which he calls a necessary step for avoiding liability should one have to terminate an employee—to share what he knows.
Credit: D.A. Fleischer
Companies nationwide turn to attorney Keith Spiller for counsel on employment law.
Having to fire someone is hard—but it's harder if it comes without a warning. An employee should never be surprised to learn things weren't working out, says Spiller. “The most important advice I can give an employer is to create and manage the employee's expectations.”Say it once ...
The first thing you want to do is establish a relationship of employment at will, which means that either the employer or the employee can terminate the relationship at any time for any reason not prohibited by law. So put a sentence to that effect in the job application.... and say it again.
Put an employment-at-will statement in the introduction to the employee handbook. And include a form in which the employee acknowledges having read the statement. The employee signs that form and turns it in; it goes into his or her personnel folder.Go by the book.
This assumes you have an employee handbook. If you don't, a lawyer can help you, and it doesn't have to be expensive. “We've done some for as little as $1,500,” Spiller says.Once you have a handbook ...
It should make clear what's expected and lay out the series of steps you'll take with an employee who isn't living up to expectations. Of course, you'll want to include a disclaimer stating that you can change these policies at any time and that the handbook does not create a contract. Says Spiller, “There are a number of cases—I have one right now in New Jersey—where the employee says you made these promises in my handbook and you didn't live up to them.” A disclaimer will help you defend against such claims.Keep accurate records of an employee's weaknesses ...
“The normal calls that I get from my employer clients go like this: ‘I want to fire Joe, because Joe comes in late all the time.' I ask to see the personnel file. Thanks to PDF attachments, I get the file minutes later and his reviews say only that ‘Joe is a great employee.' Now, if we fire Joe for being late, the personnel file may come back to haunt us.”... and strengths.
In a performance review, paint a balanced picture of the employee. Otherwise, you may lack credibility before a judge or jury.Get someone to review the decision to fire.
“If you have a lawyer, great,” says Spiller. “Otherwise, it can be someone in human resources, someone not directly involved in the decision. Take a look at how you've handled similarly situated employees. If you fire someone for missing work, but you keep on other employees who have missed the same amount of work, a judge or jury may infer there was another reason for the termination.”Consider “demographics.”
“Take a look at the person's age, gender, race, religion, national origin, and any handicap or medical condition that could be perceived as one,” says Spiller. If the employee you're planning to fire falls in a protected category, you could face a discrimination claim. That's something to consider, but “it shouldn't drive your decision,” Spiller says, especially if you've protected yourself by doing a good job of creating and managing the employee's expectations.