You are previewing Firing at Will: A Manager's Guide.
O'Reilly logo
Firing at Will: A Manager's Guide

Book Description

Firing at Will shows managers and employers how to do the most difficult part of their jobs: firing employees. Written by a leading employment lawyer in a refreshingly unlawyerly style, this guide takes the reader through the always-risky process of letting an employee go. Many employers and managers are afraid to pull the trigger when the employment relationship has broken down, and will postpone the decision by using progressive discipline and performance-improvement plans. However, an employer must be able to unload employees who threaten to undermine the company and its prospects, regardless of the risks involved in a termination. This book explains how to do it, how not to do it, and how to minimize the danger of an expensive employee lawsuit.

No one said being an employer or a manager was easy. Fortunately, knowing how to fire employees will make your job much, much easier in the long run and save you heartache. Firing at Will teaches you what you need to know, without any legalese or boring recitations of statutes and case law. This book is filled with plain-English common sense, based on Jay Shepherd's 17 years of protecting employers in court. The style is conversational and often irreverent, but the lessons and tips are battle-tested. If you want to be a successful manager or employer—and sleep easier—you need to know how to fire at will.

  • Gives employers and managers real–world advice on how to fire employees

  • Teaches how to keep your company–and yourself–out of expensive employee lawsuits

  • Guides you toward building a workplace where you'll need to fire fewer employees

What you'll learn

  • How to make the ultimate decision to fire an employee, and how to carry out that decision

  • The 30 riskiest employees to fire

  • The critical "Retained Dignity" factor, and why you need to keep it as high as possible

  • Why progressive discipline and performance appraisals are ineffectual

  • How your hiring methods and decisions can help you avoid firing employees later

  • How to have "gruntled" employees who wouldn't dream of suing you

Who this book is for

Firing at Will is a handbook for managers, employers, business owners, human resources professionals, and in-house counsel. Most of these readers will have had very little training in the hows and whens and whys of firing employees. Most people just follow their instincts, often leading to disastrous consequences. For anyone who has the responsibility of hiring and supervising employees, Firing at Will gives guidance and direction to lower the risks of employee terminations.

Table of Contents

  1. Title
  2. Dedication
  3. Contents
  4. About the Author
  5. Acknowledgments
  6. Foreword
  7. Introduction
    1. The Book and the Web Site
    2. You Are My Reader, Not My Client
  8. PART I: The Risks of Firing
    1. CHAPTER 1: “At Will” Is Alive and Well
      1. Employed at Will
      2. A Dying Doctrine?
      3. Blowing the Whistle
      4. Unintended Consequences
      5. The Letter of the Law
      6. Conclusion
    2. CHAPTER 2: The Freedom to Fire
      1. What Is a Job, Anyway?
      2. Finding Your Why
      3. The Right Team
      4. Getting People Off the Bus
      5. No One Likes to Fire People
      6. Taking Out a Contract
      7. Conclusion
    3. CHAPTER 3: Risky Business
      1. Watercooler Talk
      2. Don't Hit the “Like” Button
      3. The Morale of the Story
      4. After the Lawsuit Hits
      5. Other Costs
      6. Conclusion
    4. CHAPTER 4: The 30 Riskiest Employees to Fire
      1. 1. Female Employees
      2. 2. Pregnant Employees
      3. 3. Recently Pregnant Employees
      4. 4. Employees on Family or Medical Leave
      5. 5. Employees Just Back from Family or Medical Leave
      6. 6. Employees Who Recently Asked for Family or Medical Leave
      7. 7. Older Employees
      8. 8. Employees Who Are a Different Race from Most
      9. 9. Employees Who Are a Different National Origin Than Most
      10. 10. Employees Who Are a Different Religion from Most
      11. 11. Employees Who Are a Different Ethnicity from Most
      12. 12. Employees Who Have a Disability
      13. 13. Employees Who Have a Mental Disability
      14. 14. Employees Who Are Thought to Have a Disability
      15. 15. Employees Who Associate with Someone with a Disability
      16. 16. Employees Who Are Alcoholics
      17. 17. Employees Who Are Gay or Lesbian
      18. 18. Employees Who Are Transsexual
      19. 19. Employees Who Have Ever Complained About Discrimination
      20. 20. Employees Who Were Sexual-Harassment Victims
      21. 21. Employees Who Are Veterans or Active Service Members
      22. 22. Employees Who Didn't Get Paid for All Their Time Worked
      23. 23. Employees Who Didn't Receive All Their Overtime Pay
      24. 24. Employees Who Are About to Receive a Bonus, Commission, or Option Grant
      25. 25. Employees Who Ever Complained About an Illegal Practice
      26. 26. Employees Who Have Criminal Records
      27. 27. Employees Who Have Drug Problems
      28. 28. Employees Who Are Involved with Union Organizing
      29. 29. Employees Who Are Related to, Friendly with, or Live Near a Lawyer
      30. 30. Employees Who Are Fired with Less Retained Dignity Than They Could Have
      31. Conclusion
  9. PART II: The Whys and Hows of Firing
    1. CHAPTER 5: Why Me?
      1. Performance Anxiety
      2. How Bad Is Bad Enough?
      3. Disloyalty Oath
      4. Seven Deadly Workplace Sins
      5. Conclusion
    2. CHAPTER 6: How to Fire an Employee
      1. Don't Fire Angry!
      2. Is There a Preferred Time or Day for Firing?
      3. Where Do You Do It?
      4. Should You Have Witnesses?
      5. What Do You Say?
      6. Is Honesty the Best Policy Here?
      7. Do I Have to Give the Employee Something in Writing?
      8. Is It Ever Appropriate to Fire Someone by Phone, Letter, or E-mail?
      9. Telling Coworkers
      10. Letting the Person Resign
      11. How Much Notice Should You Give?
      12. Transition Time
      13. After the Termination Meeting
      14. What About the Final Paycheck?
      15. Vacation: All I Ever Wanted
      16. Release Me
      17. Conclusion
    3. CHAPTER 7: Retained Dignity
      1. Employees Are Individuals
      2. Convert to a Metrics System?
      3. Minding Your Ps
      4. “How Much Can I Win?”
      5. Playing the Odds
      6. Natural Anger
      7. Feeling Screwed
      8. V for Vindictiveness
      9. The Concept of Retained Dignity
      10. So What Can You Do?
      11. Conclusion
    4. CHAPTER 8: The Paper Trail
      1. Paper Beats Rock … and Scissors
      2. If It Isn't Written Down, Then It Probably Didn't Happen
      3. The Best Method of Documentation
      4. The Downside of Documentation
      5. A Warning on Warnings
      6. The Dumbest Managerial Tool
      7. Conclusion
    5. CHAPTER 9: Second Chances & PIPs
      1. Be Not Afraid
      2. “I Wish I Knew How to Quit You”
      3. Waiting for the Other Shoe to Drop
      4. The Rick Paradox
      5. Don't Be a Pipsqueak
      6. When to Give Another Chance
      7. Conclusion
    6. CHAPTER 10: Sign of the Times
      1. Monday, Bloody Monday
      2. Sending the Wrong Message
      3. Of Layoffs and Leaks
      4. Are the Layoffs Really Necessary?
      5. Having a Plan
      6. Assessing the Risks
      7. A Written Warning
      8. Release Me
      9. Conclusion
  10. PART III: The Worst-Case Scenario
    1. CHAPTER 11: Discrimination Cases Part I
      1. Vocabulary Lesson: A Tort
      2. The Best Kind of Claims for Employees
      3. What Is a Discrimination Claim?
      4. Who Can Bring a Claim?
      5. How an Employee Wins
      6. Getting Inside the Employer's Head
      7. Anatomy of a Discrimination Case
      8. Filing a Charge
      9. The Employer's Position Statement
      10. Agency Investigation and Discovery
      11. Probable-Cause Determination
      12. Conciliation
      13. Public Hearing
      14. Conclusion
    2. CHAPTER 12: Discrimination Cases Part 2
      1. Pulling the Case
      2. Forum Shopping
      3. Always Complaining About Something
      4. Written Discovery and Depositions
      5. Summary Judgment
      6. Most Cases Settle
      7. Arbitration
      8. Trial
      9. What the Employee Can Win
      10. Conclusion
    3. CHAPTER 13: A Big Payday
      1. Wages and Hours
      2. How to Lose a Wage-and-Hour Case
      3. State Wage Laws
      4. Wage Claims
      5. Vacation, All I Ever Wanted
      6. An Extra Added Bonus
      7. Commissioned Work
      8. Employee? What Employee?
      9. Working Overtime
      10. Interns
      11. Classless Actions
      12. Conclusion
    4. CHAPTER 14: He Said, She Said
      1. Just What Is Sexual Harassment?
      2. Uh-oh: Latin Again
      3. A Surge in Claims
      4. The Hardest Claim to Defend
      5. “Get Your Retaliation in First”
      6. Conclusion
  11. PART IV: Lowering Your Risks
    1. CHAPTER 15: Lawyering Up
      1. “Don't Take This the Wrong Way …”
      2. A Necessary Evil
      3. What Size Firm Should You Pick?
      4. Picking Sides
      5. What to Look for
      6. How to Work with Them
      7. Lawyers' Fees
      8. Conclusion
    2. CHAPTER 16: Throw Out Your Personnel Handbook
      1. The Trouble with Policies
      2. Playing Defense Instead of Offense
      3. The Better Part of Valor
      4. Employees Are Individuals, Like It or Not
      5. Focusing on a Technicality
      6. You Can't Plan for Everything
      7. Better Off Without the Handbook
      8. A Matter of Trust
      9. Treating Employees Like Children
      10. The World's Shortest Employee Handbook
      11. But It's the Law
      12. Conclusion
    3. CHAPTER 17: Hiring to Avoid Firing
      1. The Best Defense
      2. Taking a Dip in the Talent Pool
      3. Moving HR to “C” Level
      4. Dump the “Personnel” Stuff
      5. Getting the Right People
      6. So You Want to Be a Barista …
      7. Geeks at the Apple Store
      8. Personality and Passion
      9. Finding the Right People
      10. Breaking Bread
      11. What to Look For
      12. Conclusion
    4. CHAPTER 18: Gruntled Employees
      1. “But I Don't Run a Summer Camp”
      2. Happy Birthday
      3. Employees First, Customers Second
      4. Employee Satisfaction for $2.40 a Day
      5. Gruntled Employees
      6. What You Can Do
      7. Conclusion
  12. PART V: Appendixes
    1. APPENDIX A: Firing Checklist
      1. Before the Termination
      2. During the Termination
      3. After the Termination
    2. APPENDIX B: Firing Around the World
      1. Small World
      2. Postcards from Around the World
      3. United Kingdom
      4. Australia
      5. Canada
      6. Germany
      7. Japan
      8. China
      9. Conclusion
    3. APPENDIX C: Sample Documents
      1. Sample Offer Letter
      2. Sample Severance-Agreement Letter
      3. Sample Employment Agreement
      4. Sample Reference Letter (Reduction in Force)
      5. Sample Agency Position Statement
  13. Index