Coaching reVOL-UTion: Schiano, Currie, and what school’s lawyers are analyzing right now

December 05, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

The Tennessee coaching search has produced high drama over the past two weeks. For Vol fans like myself, it has felt at times like absolute torture and at other times like just a little bit of torture. “Vol-nation” was in better spirits after the hiring of Phillip Fulmer as Athletic Director was announced, and many are pleased with the selection of master-recruiter and talented Alabama Defensive Coordinator Jeremy Pruitt as the next head coach of the Vols. Details surfaced early Thursday that Pruitt’s new contract is for 6-years at roughly $4 million per year.

Despite this stability, however, the University of Tennessee is far from out of the woods. That is because the administration is staring down the barrel of two potentially costly legal battles over separate memorandums of understanding (MOUs) with would-have-been head coach Greg Schiano and outgoing Athletic Director John Currie. As a legal blogger and avid college football fan, I have never been more excited to bring you legal analysis.

Schiano’s MOU

As you might recall, the Schiano hire at Tennessee was torpedoed after fans and boosters responded in an overwhelmingly negative way via social media and some alleged behind-the-scenes protests. It was later reported that Schiano may seek compensation for Tennessee backing out of an MOU that was allegedly signed by then-athletic director Currie. For starters, the biggest problem in giving any decided legal opinion is that we don’t have a copy of the MOU. In the absence of the actual Schiano MOU, most have looked to the MOU for current UT head basketball coach Rick Barnes for guidance about what might be in Schiano’s agreement. The Barnes MOU contains basic contract language, i.e., offer, acceptance, description of duties, compensation, and termination provisions. It is essentially a legally binding agreement and not an agreement to agree, even though it does contemplate the parties would sign a more detailed agreement later. The MOU contains standard for-cause/no-cause termination provisions outlining the parties’ duties in the event of a separation. The Schiano MOU is likely structured similarly.

While initial reports stated that Currie signed the document, reports have since surfaced that UT Chancellor Beverly Davenport did not sign the MOU, leaving some question about its enforceability. The question remains whether Currie’s purported signature on the MOU makes the document legally binding when UT’s top brass didn’t sign the agreement. The Barnes MOU states it would constitute a legally binding agreement “when fully executed.” I added the emphasis to “fully” because of the report that Currie’s is the only Tennessee signature purportedly on the agreement. By contrast, the Barnes agreement required the signatures of the athletic director, the chancellor, and the treasurer and CFO. That is consistent with Article IV, Section 8, of the UT Bylaws, which provide in pertinent part “all contracts . . . and other instruments of legal obligation shall be executed by the President or another University Officer after any required legal and fiscal review.” The position of athletic director—which Currie held—isn’t identified as a “University Officer” capable of executing such agreements. Thus, blank signature blocks for the university officers on Schiano’s MOU would tend to support the argument that although “executed,” the agreement wasn’t “fully” executed and therefore isn’t enforceable.

Schiano, however, may argue Currie had sufficient or at least apparent authority to bind the university so that Schiano could legitimately rely on Currie’s signature alone in believing the deal was done. Additional evidence about the university’s previous practice in such circumstances, such as other documents similar to the Barnes MOU, would be necessary to give a more definitive take on Schiano’s chances of success. But you can bet he and his agent are likely to push the issue, given that big money is at stake. A “no cause” termination would bring the MOU’s buyout clause into play. The Barnes MOU provided for a buyout worth $1 million per contract year remaining in the event of a no-cause termination. That was seemingly based on Barnes’ $2.5 million annual salary. Schiano’s MOU was likely worth much more, which would most likely result in a similarly higher buyout. Given the circumstances under which the deal crumbled, it is difficult to see how UT could argue it had cause to terminate the agreement. All facts pertinent to cause, including Schiano’s coaching history and The Washington Post article linking him to the Jerry Sandusky case at Penn State, were all well-known before negotiations began.

If Schiano presses the issue, UT will have to weigh its options in deciding whether to fight or try to negotiate a mutual resolution. That, too, could prove costly. A recent example can be found just down the road in Gainesville, Florida, in the form of (UT’s SEC East rival) the University of Florida’s termination of former head coach Jim McElwain. That termination, which was “for cause,” has reportedly resulted in a settlement paying McElwain roughly $4 million of his $12.9 million buyout. Since Schiano and McElwain reportedly share the same agent, the success of settlement negotiations in other termination cases may embolden Schiano to at least kick the tires with UT to see what he can get. 

Currie’s employment status

The fallout from the Schiano debacle is far from over. Just this past Friday, Currie was “suspended with pay” by Chancellor Davenport. Despite “suspending” and not “terminating” Currie, Davenport hired former UT head coach and Hall-of-Famer Phillip Fulmer to assume the AD duties full-time, effective immediately. The hiring of Currie’s replacement while he is still on staff likely means UT administrators and counsel are conducting an internal investigation to determine whether they can fire him for causea decision that may alleviate the burden of having to pay Currie’s own buyout, which reportedly stands at $5.5 million. Whether the university can establish he acted outside of his authority with regard to the botched hiring of Schiano and his MOU or whether Currie’s desperate “Hail Mary” attempts to hire Mike “the Pirate” Leach to succeed Butch Jones was the final nail in his coffin remains to be seen.

Remember, while all of this potential cash exchange plays out on your Twitter feed, Tennessee has essentially agreed to honor former coach Butch Jones’ $8.25 million buyout. Oh, to have been a football coach where “success” is measured by a committee and under-performance guarantees you money! Whatever, man, just Swing Your Sword.

Methinks thou doth protest too much! FYI, only ‘reasonable’ opposition is protected

October 24, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

It seems that every day the news is full of stories about employees (whether they are NFL players or Hollywood starlets) protesting unfair treatment. Usually, when an employee complains about discrimination, harassment, equal pay, or other work-related topics, he or she is protected from discipline or termination because the conduct is considered “protected activity” under Title VII of the Civil Rights Act of 1964 and a myriad of other federal and state employment laws.  Hand holding protest sign

Under limited circumstances, however, an employee’s protests may cross the line from protected opposition to unprotected disruption. Specifically, an employee who engages in loud, unreasonable, and disruptive protests at work, even though the action is borne out of an attempt to protest alleged unfair treatment or discrimination, isn’t protected by Title VII. Rather, only reasonable opposition and reasonable protests are considered protected activity. read more…

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

Terminating the walking dead employee: What would Negan do?

October 24, 2016 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Like many of you, I am still reeling from last night’s brutal season opener of The WalkiBussiness batng Dead. Looking at the episode through the lens of an employment lawyer, a few thoughts came to mind: first, Negan’s managerial style is a tad harsh; second, he could really use some training on positive motivation techniques; and third, I think I can spin a blog post about how to discipline employees from this awful, gory episode! So here are four tips to help you navigate the risky waters of employee discipline, no Lucille required.

Communicate expectations

Long before an employee turns into a member of the Walking Dead, you should be clear and specific at the outset of employment in terms of what is expected of them regarding job performance and compliance with policy. In addition, you should periodically remind employees of your expectations. For example, when Negan rounded up Rick and his group, he clearly communicated his expectations: Give me half your stuff or there will be severe consequences. He also informed the group of his “one free outburst” policy and cautioned that a second violation would result in immediate termination. When a second violation of the policy occurred, Negan again reminded the group of the policy and took prompt action to enforce the policy.

Be calm and consistent   

When making disciplinary decisions, you should not act on emotion. Take time to reflect on a decision, and investigate the situation if necessary to ascertain what happened. If you do decide to take action, the punishment should fit the crime and be consistent with disciplinary action taken against other employees who engaged in similar infractions.

In Negan’s case, he certainly took ample time to reflect on his actions before clobbering a member of Rick’s group. I would venture to guess that Negan’s punishment was also consistent with action he has previously taken against others who have violated his rules and failed to meet his performance expectations. On the other hand, Negan’s method of using “eeny, meeny, miny, moe” to determine who would be singled out for punishment would certainly be deemed an arbitrary and unreasonable employment practice by the EEOC, so please avoid using this particular disciplinary method in your workplace.

Document, document, document! 

Of course, no employment law discussion is complete without discussing the holy grail of HRdocumentation! You should document in writing every disciplinary action you takeeven verbal warnings. Also document that you spoke with an employee about job performance and expectations. Documentation does not have to be lengthy or overly complicated; a simple memo to file or an e-mail to the employee summarizing your conversation will suffice.

To ensure accuracy, your documentation should be generated close in time to the event being addressed. When documenting specific disciplinary action, be sure to present the document to the employee and ask the employee to acknowledge receipt of the discipline. If the employee refuses to sign, make a note that the “employee refused to sign” to prove that he or she was placed on notice of the discipline.

Seek guidance, and keep it short and sweet

For all his evil charms, Negan made a colossal mistake in meting out discipline to Rick’s group. He should have run the termination decision by HR first!  Also, he spoke off-the-cuff about who he was disciplining and why. When you are the one at bat, you should prepare talking points about what you are going to say to an employee at termination time before you meet with the employee. Once you know what you’re going to say, be honest about the reasons for the termination, and don’t beat around the bush. Negan droned on and on about his termination decision to inflict maximum psychological terror on Rick’s group, but you should keep the conversation brief and avoid the need to defend the decision or rehash all the underlying facts.

Most importantly, what you tell the employee concerning the reason for his or her termination needs to match what is written on the termination paperwork. And whatever you do, don’t tell the employee that he or she is “taking it like a champ” when you deliver the bad news.

Finally, keep in mind that many walking dead employees can avoid turning in the first place if you foster a fair and positive working environment from the get-go. Don’t be a Negan. Treat your employees with respect and avoid ridiculing employees or “bashing” them in front of their coworkers.  Although such behavior makes for compelling television, it has no place at your company.

Until next time TWD fans!

 

#Fired: Post a tweet, lose your job

August 23, 2016 - by: Katie O'Shea 0 COMMENTS
Katie O'Shea

Many people enjoy spouting off what they view as 140-character tidbits of wisdom on the social media platform Twitter. But recently several individuals have found themselves in trouble with their employers (read: former employers) for their tweets or other social media posts.  Tweet

One recent example was a loan officer from Michigan who crafted a racist tweet, not worth repeating here, following First Lady Michelle Obama’s speech at the Democratic National Convention. Twitter users saw the tweet and tracked down the home loan company the woman worked for. The result was a flood of tweets directed to the company’s Twitter profile calling their attention to the tweet and asking if the employee’s views represented the company’s values.

One individual tweeted to the company, “you can’t tell me someone who holds this view on the @FLOTUS is not abusing her powers on other minorities.” Others went straight to the point and asked the company, “Will you continue to employ someone who is racist?”

The company saw the tweets and immediately took action by issuing a statement in response on Twitter. The company denounced the woman’s reprehensible comments and stated she was no longer employed with the company. The company emphasized that they do not condone such comments, which were made on the employee’s personal account.

Similarly, a national bank employee lost her job earlier this summer after a Facebook rant filled with racist remarks. The employee’s profile listed that she was an employee of the bank, and social media users immediately began sending the bank thousands of comments about the post. The bank investigated the post and terminated the employee, issuing a statement that they were aware of the reprehensible post on Facebook and the employee had been terminated. In this instance, many customers even threatened to close their accounts with the bank.

The public appeared particularly attuned to this issue given that in 2013 the bank was ordered to pay more than 1,000 African American job applicants over $2 million in back wages and interest after a judge found one of the company’s offices had discriminated against them based on their race.

Even celebrities like Blake Shelton, a judge on the popular singing competition show The Voice, have been called out by the Twitter masses for their tweets. Just last week, the country singer tweeted what some have dubbed a “non-apology” for past racist and homophobic tweets. Some of the tweets in question stem as far back as 2008, proving once again that the Internet never forgets.

With social media, it’s possible for a tweet or post to go viral immediately, and companies must be attuned to their social mentions and quickly take action if problematic posts surface. As with the bank case, delaying an investigation and taking action could cost a company customers and create bad PR.

If a company is considering taking action against an employee for a problematic post on social media, HR should be sure to immediately save or print a copy of the post in question in case the employee attempts to delete it. Employers also should keep in mind that some states might limit an employer’s ability to investigate social media or take action against an applicant or employee based on off-duty conduct.

Of course, employers also must be cognizant of the National Labor Relations Act (NLRA) in analyzing employees’ social media posts. In recent cases, the National Labor Relations Board (NLRB) has found that certain employee posts, and even rants, were protected activity under the NLRA because they pertained to concerted activity and union activity. The NLRB has found that employers violated the NLRA by terminating employees for participation in protected conduct, and has awarded back pay.

In light of these recent tweets, it’s important for employers to evaluate their social media policies and consider how they might respond to an employee who makes a racist, sexist, or otherwise inappropriate remark on a personal social media page. Employers should be extremely careful when disciplining employees over social media posts, however, especially if the posts pertain to conditions of employment. Employers considering disciplinary action or termination based on an employee’s social media post should act swiftly but consult with counsel beforehand.

Headline news: Policies, procedures essential tools in fight against sexual harassment

July 12, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

Last week, former Fox News Anchor Gretchen Carlson slapped Fox News Chairman and CEO Roger Ailes with a wrongful termination and sexual harassment lawsuit in New Jersey Superior Court. The lawsuit alleges that Ailes made “sexually charged comments” to Carlson, including comments about her body and requests for what could be considered quid pro quo sex. According to the allegations, Ailes stated that Carlson and he “should have had a sexual relationship a long time ago . . . .”  Sexual harassment in the office

Carlson’s complaint also attributes numerous other sexually charged statements to Ailes, including comments about her legs and posterior and requests that she wear certain clothes to enhance her figure. Carlson claims that, following her rejection of Ailes’ advances, her contract with Fox News was terminated. Ailes claims that Carlson’s allegations are false and that her contract was terminated due to her television show’s poor ratings.

Irrespective of where the truth lies in this Carlson vs. Ailes matter, it is important for employers to ensure proper coworker conduct in the workplace and to implement thoughtful harassment and discrimination policies to address alleged workplace discrimination. In the coming months, it will be interesting to see what complaints Carlson made to the human resources department at Fox News, whether Fox News investigated Carlson’s complaints, to what extent the complaints were investigated, and the outcome of such investigation.

Companies should have well-defined sexual harassment and discrimination policies that identify inappropriate behavior and the mechanisms for complaining, including to whom the aggrieved employee should complain. Once a complaint is received, employers should thoroughly investigate the complaint, interview the relevant witnesses, and determine whether any remedial action is warranted. Companies in general should discourage employees (both management and non-management) from making improper, sexually charged comments, including many of the types of comments Carlson imputes to Ailes in her lawsuit.

ABC, Kelly Ripa, Michael Strahan, and lessons on parting ways with key employees

May 17, 2016 - by: Josh Sudbury 6 COMMENTS
Josh Sudbury

What Kelly Ripa lacks in size, she makes up for in attitude. At just 5’3″, the petit daytime talk show star measures but a fraction of the size of her former co-host, Michael Strahan, himself a former New York Giants defensive end and Super Bowl champion. But Ripa’s actions since news broke of Strahan’s planned departure from Live! for a permanent slot on ABC’s Good Morning America show the pint-size starlet is anything but meek. key room

Strahan, in classic defensive end style, reportedly blindsided Ripa and the Live‘s producers with news of his move shortly after the show on April 19. Ripa, who was reportedly shocked and furious with the announcement and its delivery, was conspicuously absent from the show the following few days, allegedly celebrating her and her husband’s wedding anniversary. Despite Ripa’s being all smiles when she returned to the show, guests commented that interactions between her and Strahan were noticeably tense. On air, Ripa also got in some passive aggressive digs at her soon-to-be ex-co-host, making it clear to the viewing public Strahan wasn’t the only one skilled in the art of the sneak attack.

On the business side of things, Ripa and her producers bumped up Strahan’s exit to last Friday, May 13, rather than waiting until September as originally planned. According to an ABC spokesman, the move, which garnered the show more attention, was done so that Ripa and her team could “immediately begin the on-air search for a new co-host.” This past Monday, Ripa also changed the name of the show to “Live with Kelly” and released a new logo bearing the revised brand (mind you, a brand that is now very used to transition, having first been Live with Regis and Kathie Lee, and then Live with Regis and Kelly, before the recently defunct Live with Kelly and Michael.

Lessons for employers

The drama surrounding Strahan’s departure from the Live franchise underscores the importance of having a plan for dealing with key employee resignations. While the loss of an employee will no doubt affect your business, taking a few steps can ensure the impact isn’t fatal. For starters, employers should craft a plan for communicating the exit to the rest of the company. ABC’s communications to Ripa and the Live team regarding Strahan obviously left something to be desired. Instead, other key employees and team members should have been the first to know the change was likely happening, both to avoid the shock factor and to allow for ample time to plan for the replacement. On the flip side, it may have been advisable for Live’s producers to have a back-up transition plan even before the announcement, as a “just in case” precaution.

Another good step, which Ripa seemed to have taken, is to determine a date of departure that works best for the company. Details surrounding the employee’s payout can be worked out between the parties, and might even help shape a severance package if the company wants the employee’s exit to be sooner than the employee had planned, but is still willing to provide him/her with compensation for a time beyond that date. If the company is willing to provide such a severance plan, management should also attempt to negotiate a release of claims from the employee in exchange for the additional compensation.

Lastly, it is important that the company make a clean break with the employee and attempt to part on amicable terms if possible. Regardless of the circumstances of the employee’s departure, it’s best for management to avoid any lasting animosity that may fester into lawsuits against the company.

With a little planning and good execution, your employee transitions can be smooth and create the least impact on your business.

Exercise Aniston-esque restraint when analyzing offensive employee posts

February 22, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

by Ed Carlstedt

This week’s employment law lesson comes to us from the movie Horrible Bosses. In the movie, Julia (played by Jennifer Aniston) is a dentist who employs dental assistant Dale (played by Charlie Day). After Julia uses her boss status to torture and torment Dale for most of the movie, Dale finally records her improprieties and delivers to her the following long-overdue payback speech:

This is what’s gonna happen. I’m going to take a two-week-long, very expensive holiday with my fiancée. Let’s call it a honeymoon. And YOU’RE going to pay for it! Then I’m going to return to a nice, rape-free workplace from now on. Because if you so much as LOOK at my sexy little a**, Julia, I will have yours locked the f*** up you CRAZY B**** WH***! Man, that felt GOOD!

In the movie, Dale’s quote is an amusing moment of vindication and redemption, one that Julia’s conduct warrants. You literally find yourself rooting for Dale as he delivers the obscenity-laced tirade. The notion of telling off a horrible boss without fear of reprisal is every Woman Watching Shocking Message On Social Network Late Nightaggrieved employee’s dream. And in the movie, there was nothing Aniston’s character could do other than sit there and take it. But in real life, what does an employer do when an employee posts similar obscenities about it on social media. Well, if the National Labor Relations Board (NLRB) has anything to say about it, you might have to adopt an Aniston-esque approach to responding to the potty-mouthed employee.

In Pier Sixty, LLC, 362 NLRB No. 59 (Mar. 31, 2015), a managerial-level employee of a catering business (Bob) asked several staff-level employees to spread out during a fundraising event and stop chitchatting. One of the employees was so offended by the manager’s instructions that he posted the following on Facebook:

Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Shortly thereafter, the employer learned about the Facebook post, conducted an investigation, and terminated the employee. In analyzing the employee’s Facebook post, the NLRB found that his comments were protected activity under the National Labor Relations Act (NLRA) because they pertained to concerted activity and union activity. The NLRB found that the employee’s comments (all of his comments, including the F-bombs and accompanying family love-making references) were protected. Therefore, the NLRB found that the employer violated the NLRA when it terminated the employee for his participation in protected conduct, and it awarded him back pay.

Several other cases adhere to the sentiments of the Pier Sixty case, including Three D, LLC v. NLRB, 2015 WL 6161477 (2d Cir. 2015), and Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015). These cases demonstrate that employers should be extraordinarily careful when disciplining employees over social media posts, particularly when the posts or questionable conduct pertains in any way to conditions of employment.

Based on these decisions, the NLRB and courts are likely to broadly define protected activity under the NLRA, even when the employee’s comments are riddled with profanity and make statements damaging to the employer. Thus, just like Jennifer Aniston in Horrible Bosses, employers may be forced to turn the other cheek when confronted with what appear to be obscene and inflammatory employee remarks. To the extent you are an employer considering disciplinary action based on an employee’s social media post, we highly recommend you consult with counsel before taking such action.

3 tips on firing employees—Les Miles/Mark Richt “silly season” edition

December 01, 2015 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

With the college football regular season coming to a close, you may have noticed that a different kind of season has begun, a time referred to by authors and sports bloggers alike as “silly season.” The fun (and farce) is typically kicked off by the mid- to late-season rumors that a formerly promising coach of a prominent program will be shown the door as soon as the clock hits zero at the last game. Many times their replacementthe one who will certainly be able to finally take us all the way!is an unproven coordinator from a rival school, an up-and-coming head coach from a lesser conference or division, or even more hilariously, a head coach recently given the boot by another program. Laid off-Head in hand

This year, the biggest rumors surrounded LSU head coach Les Miles, a man with a career winning percentage above 75% at LSU, a national championship, an SEC championship, multiple SEC West division championships, and seven seasons with 10 wins or more. And let’s not forget Les also had a buyout provision in his contract worth a reported $15 million, which allegedly was “not an issue” for the LSU booster club, despite the fact that the university itself is on the verge of bankruptcy. Thankfully, cooler heads prevailed after the Tigers took down Texas A&M in Baton Rouge 19-7.

The ending wasn’t so positive for Mark Richt at Georgia. Shortly after the Bulldogs beat rival Georgia Tech 13-7 to finish the regular season 9-3, Richt was asked to step down, even though he will be allowed to coach in the bowl game. If UGA wins, it would be Richt’s 10th season with 10 wins or more at Georgia. Doesn’t seem too terrible for a program whose only national championship came 35 years ago on the legs of Herschel Walker, arguably the most talented running back in NCAA history. Take it from a Tennessee fan: Bulldog nation, you may be in for a long, hard ride.

When it comes to your company, however, there are times when termination is the best option, be it due to consistent poor performance, inappropriate behavior, or any number of other factors. When that time comes, you don’t have to end up looking like a flustered athletic director after scanning the online message boards. Instead, take these few simple tips on how to prepare for, and carry out, terminating a troublesome employee.

1. Make sure the offense warrants the punishment

It may seem like a no-brainer, but before you terminate someone, it’s probably best to have more than a gut feeling that termination is necessary. Try not to put yourself in a bad position by acting on emotion. Doing so may lead to inconsistent outcomes, which affects your credibility with the rest of your staff.

Instead, if you feel an employee’s conduct or performance warrants termination, take a step back and review the facts and circumstances on which the discharge would be based. Was the employee’s performance truly sub-par, and was that employee in control of those outcomes? Did the employee actually violate company policy? Has he/she been warned before? Did others receive lesser punishments for similar conduct? If so, why? While you should not let the need for reflection lead to inaction, thinking through a termination decision is certainly preferable to the potential cost of a poor decision.

2. Stick to the facts

Too often, I find myself representing an employer whose need to justify a termination resulted in them playing fast and loose with the true reasons for the decision. While it may seem smart to tack on a few violations (strength in numbers, right?), the end result is just the opposite. Adding facts detracts from the true reason for your actions. This may confuse the employee as to why he/she is being terminated. (“You never mentioned this before. What is this doing here?!?”)

It can also negatively affect your credibility when you are later asked to explain the reasoning behind your actions. The inability to zero in on the exact reason for the employee’s termination may mean you should re-think your decision. Once you have formulated the reason for the termination, be sure you are prepared to communicate it to the employee without extraneous explanation or facts.

3. Treat the employee with respect

I have said in this blog and during many presentations that the #1 reason employees sue their employers is because they feel they were mistreated or treated unfairlynot necessarily illegally. Termination is an embarrassing moment for the employee. There may be a lot of explaining the employee has to do to spouses, children, friends, etc. This is not to say you should be apologetic for your decisionif you didn’t have to terminate them, then why are you? But, it’s OK  as an employer to show empathy for the personal implications of the termination.

Treating the employee with respect includes meeting privately with the employee and one witness, preferably of a managerial level, giving the employee time to let the decision set in, escorting rather than throwing him/her out, and offering to have another employee gather the personal belongings. By allowing the employee to maintain a bit of dignity, you may be able to avoid potential backlash such as a lawsuit or administrative charge.

These are just a few tips that can help you successfully navigate a difficult termination decision. As with most employment decisions, I encourage you to seek out the advice of trusted counsel to help talk you through the process. Doing so may go a long way toward reducing your company’s potential exposure in the future.

 

Haunted by work

November 16, 2015 - by: Matt Gilley 0 COMMENTS
Matt Gilley

This blog’s mission is to be witty, entertaining, and informative. That mission is difficult when the headlines are as sobering as what we’ve seen since last Friday in Paris. Before I launch into this week’s EntertainHR installment, I want to extend my sympathies to and express my solidarity with the people of Paris and, in particular, the lawyers and staff of Capstan Avocats, our French affiliate through Ius Laboris. My thoughts and prayers are with you.   Ghosts at the Office

I have a mindless indulgence—ghost-hunting shows. Maybe it goes back to my childhood days in the Ozarks listening to my family tell stories that had come down from across the generations but, whatever it is, I just can’t get enough of these things. I love watching a group of people wrap themselves in electronic gear, stumble through a purportedly haunted house in the dark, and scare themselves senseless. I eat it up when they manage to catch something—a voice, an image—that actually defies explanation. I once got myself so wrapped up and spooked watching one of these shows that I screamed bloody murder when my wife simply walked in the room. (No, not one of my better moments.)

Considering there is an abundance of these shows and even entire networks focused on the paranormal, it looks like I’m not the only one. People just enjoy a good, harmless fright. After all, ghosts aren’t real (right?).  What’s the harm?

Ghosts at the office are a different story. They’re real, they’re a pain, and they’re more frightening than their otherworldly counterparts. You encounter them much the same way the family in The Amityville Horror fell in love with their house; on first glance, everything looks great (the house is a dream, the resume is perfect).  When you seal the deal, however, the nightmare begins.

Here are a few categories of workplace ghosts.  Feel free to suggest others below…

  • The wandering lost soul: This spirit begins haunting you about a week after you hire him. You see, you hired this guy right on the spot–he had excellent credentials, spot-on industry knowledge, and a go-getter attitude. The problem is he was hiding a noncompete agreement, and now you’re stuck in a litigation nightmare.
  • The hitchhiker: We’ve all heard the story—a driver picks up a friendly young lady on a deserted road and drives her to her home, only to have her disappear because she actually died a grisly death on that very road X number of years ago. The office hitchhiker isn’t much different. She shows up on her first day, fills out all her paperwork, takes a look around, goes to lunch, and never comes back.
  • The poltergeist: Poltergeists are the most frightening haunts because you can’t see them; you know them only by the destruction they leave in their wake. Similarly, you won’t see the office poltergeist when he approaches. He insinuates himself into the company through an attractive mien and flattering approach. Once inside, however, he goes on a tear: screaming at coworkers until they flee in horror, plaguing HR with harassment complaints, and refusing to go away. The office poltergeist, however, is a mirror image of the “real” (?) deal. You can’t see a “real” (?) poltergeist, but you wish you could; on the other hand, the office poltergeist is quite visible and defeats all your attempts to make him go away.
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