What Attorneys Need to Know about Hiring, Evaluating, and Terminating Employees

Episode Notes

Transcript

The Florida Bar Podcast

What Attorneys Need to Know about Hiring, Evaluating, and Terminating Employees

02/21/2019

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Christine Bilbrey: Welcome to the Florida Bar Podcast brought to you by LegalFuel, the Practice Resource Center of the Florida Bar on Legal Talk Network. We’re so glad you’re joining us. This is Christine Bilbrey. I’m a Senior Practice Management Advisor at the Bar and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.

Karla Eckardt: Hello, I’m Karla Eckardt. I’m a Practice Management Advisor at the Florida Bar and a co-host of today’s podcast. Our goal at the Practice Resource Center is to assist Florida attorneys with running the business side of their law practices.

We focus on a different topic each month and carry the theme through our website with related tips, videos, and articles.

Christine Bilbrey: So this month we’re discussing the critical things that every attorney needs to know when hiring, evaluating or terminating an employee and joining us is Michael S. Cohen. Mike is a partner at Duane Morris, LLP in Philadelphia in the firm’s Employment Services Practice Group, where he concentrates his practice areas in the area of employment law training and counseling.

He has trained and counseled employees throughout the country on subjects including harassment prevention, diversity discipline, hiring, firing, recruiting, performance evaluations and compliance. Mike has been cited as a national authority on employment issues by the New York Times, The Associated Press, USA Today, MSNBC and SHRM On-Line.

Welcome to the show, Mike.

Michael Cohen: Thank you so much for having me.

Christine Bilbrey: So Karla and I had the pleasure of seeing you present at the Association of Legal Administrators’ Annual Conference and we have been talking about some of the things we learned from you ever since, because we know that having the right staff can make or break a firm.

But being an employer also comes with some risk if you don’t know the basics. And a lot of our members practice as solos or they’re in very small firms and they don’t have the benefit of having a human resources department. So we’re excited to have you talk about some of the things every employer should know and I’ve been in interviews in the past.

So we’re just going to start with hiring, and I was in interviews with attorneys who would ask applicants inappropriate or what I knew to be illegal questions during the interview. Can you tell our listeners about some pre-employment questions that they really should avoid or never ask.

Michael Cohen: Sure. So when we talk about hiring and interviewing, the area where managers really or professionals who are conducting the interviews in any industry really struggle most is with what kind of questions can we ask them, what kind of questions can we not ask. And let’s spend a little bit of time talking about those areas of inquiry that we should not be delving into overwhelmingly because they’re illegal.

And those are initially the areas related to somebody’s membership in an EEO protected class. Asking questions relating to somebody for example their age, for example whether in the case of a woman whether she is pregnant or she is intending on getting pregnant, somebody’s sexual orientation in some jurisdictions would be illegal to ask.

Then we get — we go beyond just those questions related to somebody’s EEO protected class and we get into things like familial status. We get into things like marital status, sometimes we get into areas of inquiries that are just, just too personal in nature and nobody intends to go into an interview, I would hope, sitting down with the candidate who is before you and saying something to them along the lines of, so Mr. Cohen, how old are you?

So Mr. Cohen right – so Mr. Cohen what are your religious beliefs? So Mr. Cohen, are you gay? Those aren’t the questions that ordinarily come up, but let’s assume and let’s use age for just one moment. You’re sitting down with a candidate in an interview and you look at the person’s resume, you look at the person’s application, do you appear to be perhaps around the same age that you are in the first question you ask is what year did you graduate.

Now, I will tell you I got into the law because it was my understanding there would be no math. But even with what are my extraordinarily limited math skills if somebody tells me what year he or she graduate from high school, what year he or she graduated from college, I pretty readily can figure out about how old that person is and when we spend 30 minutes of a 45-minute interview talking not about qualifications, talking not about prior work history or educational background but instead focusing on TAs we knew, sports teams we played on, bands we went and saw.

(00:05:03)

And ultimately, we make the decision not to hire that person of course not as a result of the person’s age but because this was not the most qualified individual for the job. That may not be what the claim says. What the claim says is you didn’t hire me because of my age, where’s my evidence, you spent two-thirds of a 45-minute interview talking about precisely how old I was.

So we don’t go in intending to ask these questions, but very often it comes up Mr. Cohen, how was your Christmas holiday? Well, you know, my last name is Cohen, so C-O-H-E-N, and I always laugh and there are people I know who I’ve known for years and it comes up in December of every year, are you excited for Christmas, to which of course I always respond, yes, I am, because the conflict in my house notwithstanding the fact that we’re Jewish, we love us on Christmas.

But during the course of an interview to make an assumption that somebody celebrates the same holidays that you do or celebrates holidays at all, let’s call it naive on its best day, potentially problematic from a legal standpoint on its worst.

Christine Bilbrey: Yeah and when I’ve been in that situation and you try to telling an attorney hey you’re doing something illegal is not often received well when you’re their firm administrator. The response is always well, this is just about getting to know them. So oh, you went to University of Florida, I went to University of Florida so they think they’re forming this bond and then it goes down a road that should have never –

Karla Eckardt: Right, it’s not just the direct questions, it’s any indirect implications that may arise from those questions.

Christine Bilbrey: And like you are saying –

Michael Cohen: First off, can we say Go Gators, can I just leave that right there, but go right ahead.

Christine Bilbrey: Oh yeah.

Karla Eckardt: We are in Tallahassee, Go Noles.

Michael Cohen: Oh right, right, go ahead.

Christine Bilbrey: But what are some things so like, you want to get the best candidate and so what are some things that you do recommend asking, what’s going to be productive?

Karla Eckardt: Right.

Michael Cohen: Sure. And ultimately that’s the goal. It’s to make sure that we can bring in that individual, were those individuals who are going to fill the spot that we are looking to fill and are going to make our firm the most productive place it can be. And what we hear and is similar what you just articulated is well, if I’m going to bring in the person who’s going to work in our family the best, we need to have as much information as we possibly can about that individual.

And I’m not a 100% sure I agree with that all the time. There’s lots of information about people that we’re not going to have and we’re not entitled to get and frankly, we don’t want to have about individuals before they come in. But we do want to focus on things like prior work experience, we do want to focus on things like their background, how did they get to where we are today and we want to make sure that we are going to ask questions that are going to get to those answers.

A type of question that I am a huge fan of, some people shy away from, are behavioral based questions or situational based questions. If this is an individual who’s going to be working we know that the client with which this person is going to be working is particularly difficult and needs answers, needs answers immediately whether those answers are right, whether those answers are wrong, that person needs answers.

So I want to put the person who’s going to be sitting in front of me in a bit of a tough situation. I want to ask a question that is hard to answer and if the response I get from that individual which by the way, may be a thoughtful answer, something along the lines of hey, you know what, this is a little bit of a difficult question, can I have a few moments to think about it, that may not be the right fit for the client whom this person is being hired to service.

So I do love the idea of behavioral based or situational based questions, putting that person in a little bit of the hot seat. Now, that has to be tempered with the fact that the hiring process and this is something we lose sight of very often. The hiring process is a selling process, right, we are certainly buyers because we have the thing the person wants, right. We’ve got the job but we have to make sure that we never lose sight of the fact as an employer wanting to bring in the best and the brightest, wanting to bring in the most qualified individual for the job whatever that looks like.

We need to never lose sight of the fact that we have to sell our firm, we have to sell our organization from the second that person walks in and even before that person walks in, which means there need to be certain things that happen in advance of your ever sitting down with a candidate.

One is making sure that we have reviewed every piece of material that that person has provided to us in advance of their sitting down because I can’t think of too much that’s less respectful. I can’t think of too much that does a poorer job of selling you as an individual and your firm as an organization, than spending the first five minutes of an interview, reviewing the information that this person has already sent to you that you’ve had for weeks.

(00:10:02)

There’s a respect piece here, right. We do need to make sure that we are selling from the first second, which means if we spend the first 5-10 minutes reviewing materials that we’ve already had, what’s the message you’re sending to that candidate?

I didn’t really think enough of you. Yeah they’re not important. I didn’t really think enough of you in advance of sitting down with you to go over the material and that’s not to suggest, we’re not busy, of course, we’re all busy. But if I’m that candidate and I’m sitting there watching you review the information that you’ve had, my immediate thought is wow, this is the respect with which you’re treating me while you’re trying to sell me, my goodness, what’s this going to look like when I actually get here.

Karla Eckardt: Right.

Christine Bilbrey: Right, and doing some of that preparation. So you mentioned behavioral based questions and so I assume a lot of our listeners may not know what that is, so it’s all those questions about tell me about a time when you — tell me about a time when you had a boss who was very demanding, tell me about a time when you didn’t agree with your boss and so I know that there’s a lot of books out there, but I just want to direct people to those questions without laboring that point.

Michael Cohen: Great.

Karla Eckardt: So having covered what not to ask, what to ask, how important would you say that it is for employers to develop a uniform application process and properly train interviewers on that process?

Michael Cohen: I think it’s essential. I think it’s absolutely critical that we don’t assume that the people who are conducting interviews know the first thing about interviewing, because unless they’ve been trained why would they know. The process is critical, it doesn’t mean there’s never going to be deviations from the process, of course, there are deviations from the process and any time we’re going to deviate from the process of course, we’re going to document why we did what we did at the time we did it.

But overwhelmingly we’re going to have a process in place which we’re going to follow, and the people who are going to be a part of that process must be trained on how it is going to work, not just from a process standpoint, but really in the sort of the nitty-gritty questions to ask questions not to ask. Are we going to be doing a one-on-one interview, are we going to be doing a team interview?

If we’re going to be doing a team interview which a lot of firms do, the firm for which I work from time to time will do one-on-one sometimes will do teams, and if we’re going to be doing a team interview I want to make sure that I sit down with each of the people who are going to be conducting the interview and make sure we understand who is going to be asking what, that we’re not talking over each other.

You mentioned making sure that we’ve got a process, have we created the uniform list of job related questions in advance of sitting down with the person before we sit down with the person. To make sure that the questions that need to get asked actually do in fact get asked. There’s no way that’s going to happen effectively. It may not happen at all, but it’s certainly not going to happen effectively unless and until from an organizational standpoint, we sit down with those people whom are going to be conducting the interviews and train them.

We can’t assume, and this is not unique to law firms. It’s particularly difficult sometimes in law firms but it’s not unique to law firms unless we train managers and in our case whether that means partners, whether that means shareholders, whether that means administrators in a firm, until and unless we train them on the kinds of things we need them to be doing and as sometimes more importantly not doing, I think we can’t assume that they’re going to be doing it the right way. In fact I think we can assume the exact opposite. I think we can assume that they’re going to be asking questions that they ought not ask.

I mean I can’t tell you the number of times I have sat in meetings and I’ve been practicing law for 22 years, where I’ve sat in meetings in law firms where I’ve heard comments made during the course of the hiring process, where I felt like I had to go old school and put my earmuffs over my ears and run out of the room. I am just sitting there thinking I don’t hear you, I don’t hear you, I don’t hear you, because statements are being made directly related to, for example, some of those protected classes we discussed earlier. For example, the fact that somebody has a child or a spouse and how that may or may not impact the person’s ability to do the job.

Karla Eckardt: So the moral of the story I guess for the hiring process for our listeners is don’t wing it. Really I mean just –

Michael Cohen: No.

Karla Eckardt: Know what to do, know what not to do and prepare out of respect for the applicants.

Michael Cohen: Absolutely.

Karla Eckardt: If you have gathered anything from that section, don’t wing it.

Michael Cohen: And I think an important part of this not to lose sight of ever is this selling piece. If this is a particularly good associate, if this is a particularly good assistant, administrator, director, HR person, if this is somebody who appears to you to be a particularly attractive candidate for your firm. I think it’s safe to assume that you’re not the only firm with which that person is interviewing.

And if we don’t send that person off from our firm with the right message about our firm they’re not going to come work for you. They’re just not going to come work for us, they’re going to go someplace else.

(00:14:57)

Christine Bilbrey: That’s an excellent point. So if you have — you’ve now found the perfect candidate, you’ve brought on your team and you’re busy practicing law, a lot of attorneys are not doing any kind of evaluation process.

Karla Eckardt: They are too busy.

Christine Bilbrey: Yeah. They will tell us that. That’s not what I hired them for, they’re just supposed to sign up, do their job. Can you talk to our listeners about why it is important for them to take the time to do regular performance appraisals of their employees?

Michael Cohen: Well, I suppose at the risk of sounding flip or short or sarcastic, how badly do you want the good ones to leave?

Karla Eckardt: Right.

Michael Cohen: So a phrase or a line or a sort of a mantra I use all the time when I do trainings for law firms specifically is performance management whether it comes in the form of documenting discipline, whether it comes in the form of what we’re talking about more directly right now, performance appraisals.

Performance management is essential and partners, shareholders in law firms don’t like to do this stuff, and this phrase that I use all the time is partners in law firm, shareholders in law firms, managers in law, they’re very good at managing cases. They’re very, very effective at managing deals or managing projects, very often they’re not quite as effective at managing people. And managing the people that report to them simply stated is absolutely critical and essential, these days more than ever.

I hear this very often late at the feet of Millennials, which I find to be incredibly insulting to Millennials. Millennials need hand holding.

Karla Eckardt: It is.

Michael Cohen: Millennials need constant feedback.

Karla Eckardt: As a millennial, yes.

Michael Cohen: Yeah, and the fact of the matter is my goodness, particularly in the law firm environment where we are not full of type-A personalities, we are full of Type A+++ personalities, people who are built like that and I consider myself among that group. We need feedback. We need to hear how we’re doing and it doesn’t have to be in a formalized basis though it should be at least once a year in a formalized basis, it doesn’t have to be in a formalized basis, it can be somebody coming into your office and saying, I really appreciate what you did there. I know you were working all weekend, really, really wanted to let you know that I appreciated your blowing your whole weekend to come in and work on that case bit or that TRO or that deal that came up at 4 o’clock on a Friday which is seemingly when they always come up.

That kind of conversation which by the way cost the partner or the manager literally nothing, keeps people motivated, keeps people going, but when we’re talking about more direct performance-based conversations with associates, with staff members, we’re not particularly effective at it in the law firm environment. And it’s not because we can’t, it’s because we don’t want to and therefore we don’t do it, and I hear from partners, from shareholders in firms, well, you want me to thank somebody, you want me to give feedback. I mean they’re adults, they should know. Why, why would they possibly know unless you tell them?

Christine Bilbrey: But then the flip side of that is I think that once you force some people that are unwilling to do these performance appraisals, you’re going to get very surface level, good job, good job, check, check, check, check. Here’s your performance appraisal. What is the danger in giving out positive just blanket performance appraisals to your staff?

Michael Cohen: So, there’s a couple of pieces. First off there’s something implicit in what you just asked and please if I forget to come back to that specific question remind me because I think it’s an incredibly important question but I want to get to something that is sort of baked into that question, which is the assumption that we will get these lousy or superficial or reviews or these reviews that are just devoid of any meaningful thought. There’s a law firm that I have worked with that had the best performance appraisal process as I’ve ever seen and I’m not saying that for just law firms, I’m saying organizationally. And what they do and it’s wonderful.

When you’re a junior associate in any mid-sized or a larger law firm, you don’t report to one person, right. You report to 2, 3, 8, 10 people and at this firm, each of the people who are evaluated they received an evaluation from each of the people for whom they performed a certain amount of work, certain number of hours or more. And then in addition to receiving that they received an aggregate review which was not just a cut and paste, it was a thoughtful kind of aggregate review that was prepared by an evaluation committee inside of the firm.

And I had a conversation with one of the administrators of firm, trying to get an understanding of how they got their partners, to take the time, to put together these really meaningful reviews.

(00:20:00)

That were really helpful to the associates and the line that the administrator said to me and it was really it was funny I laughed was, partners in law firms are not employees and I said right, I’m with you so far partners are owners, and then it occurred to me. If you’re not an employee, you know what you don’t have to do, you don’t have to pay that person and what that law firm did was it made a decision that until and unless the partner provided to the evaluation committee, evaluations that were meaningful in nature they did not receive their draws.

Christine Bilbrey: Uh-huh.

Michael Cohen: Yeah. You would be —

Karla Eckardt: Genius.

Michael Cohen: And you would be stunned at how quickly these partners were able to get these evaluations done in a meaningful way, because they wanted to get paid. So, look you can’t do that in certain environments, you can’t do that even in all law firms depending on whether it’s a shareholder who technically probably is an employee as opposed to a partner in a firm who more likely is an owner, certainly if it is a non-legal manager you can’t do that, but the idea was this firm had developed this practice and this sort of custom internally where the performance appraisals really did matter and that starts at the top by the way.

Obviously, you can’t just walk into the firm one day and say hey, partners we’re not paying you until you do good job on your evaluations that’s going to be — that’s a cultural issue and that’s something that has to be started at the top. But it was an incredibly interesting conversation and again I will tell you from an effectiveness of an appraisal process it’s one of the best I’ve ever seen.

Now, let’s talk about some of the problems we have with the partners with the managers, shareholders in law firms who aren’t taking the time that these documents deserve. And there’s a few big ones, I mean, there’s a number of different problems which I’m sure everybody can kind of conceive. But let’s talk about the couple of real big ones I see.

A number one by far and it’s not even close is when you rip through a performance appraisal and you communicate to an associate to an employer performance appraisal that is very clear that you put no thought into it, you’re sending one message and one message only you can dress it up any way you want, but it doesn’t matter you are sending one message and that is I don’t care. I don’t care about you, I’m not concerned about your career my time is way more valuable to me than is your time.

I don’t care how busy you are, I don’t care what you’ve been doing. Appraisals have to be given the level of attention that they absolutely deserve because if you don’t, make no mistake the only message you’re sending is I don’t care and while that may not matter with respect to the lousy employees, the good employees, the ones who you really need to stick around you’ve devalued their presence at the firm.

You’ve made clear to them that their performance is of no consequence to you and they’re going to go. They’re going to go find someplace else to work. So we’ve got the idea that we don’t take sufficient time that evaluations are late or that evaluations say in a meaningful way nothing.

Another big problem I see all the time is an over evaluation which is the evaluation — you evaluate employees who are not performing particularly well far more highly than they should be evaluated. And this typically happens for one of two reasons. One, the drafter of the evaluation is not taking the time or paying the level of attention that he or she should be taking or providing.

Second, the partner or the manager or the shareholder wants everybody to love them, that’s never going to happen. We’re going to have people reporting to us who don’t think we’re the greatest thing since sliced bread and that’s okay.

There are a couple of big problems with the over evaluation. Let’s say I’m working closely with somebody and let’s say, the person with whom I’m working closely is a rock star of an associate whereas I’m incredibly not, I do not do a particularly effective job in my job and I love working with that other person, because that person handles all of his or her work and a significant portion of mine and then we go into our evaluations and that person and I always go out for lunch on Friday. We go out for lunch we’ve both had our reviews in the morning and the first conversation we have of course is what, how’d you do on your review.

And that person goes first and that person’s review is absolutely stellar as it should be and that person is incredibly happy, because that person received a very good review and now of course, I’m happy because that person is happy and that person is going to continue doing all of his or her job and part of mine. And then it’s my turn to talk.

And my review sounds strikingly similar to that other person’s review and I can see smoke coming out of that person’s ears and I can see beads of sweat down their face. I can see a trickle of blood going down the person’s chin where the person has just bitten a hole through his or her bottom lip, because what’s the message you sent to that other employee at the risk of going a little too old on pop culture I’m going to steal Bill Murray’s line from the movie Meatballs.

(00:25:05)

The very clear message you sent is it just doesn’t matter. Performances of no consequence whatsoever here, because Cohen who barely has a pulse got the same review as did the rock star employee, which now we’ve created two significant problems.

Problem number one is with the really good employee. We’ve devalued the excellence of that good employee which means that good employee is going to do one of two things. Either one, the employees going to sit there and say, you know what, I am no longer going to be a chump, there is no way I’m going to continue to work hard, and now we’ve lost the excellence of the good employee.

More likely, good employees that’s not how they’re built. Good employees are built to work, so that employee is going to continue working hard for somebody else. They’re going to leave, there’s no two ways about it that person leaves. Second problem is me, isn’t it? It’s Cohen. Try and fire me now. I’m not going anywhere, because —

Karla Eckardt: No, you’re going to sail up.

Michael Cohen: Yeah, of course and the other thing is like I didn’t think I could do any less, I do believe that I’m going to find out.

Christine Bilbrey: Oh.

Michael Cohen: Yeah, right. I’m going to go Costanza and I’m going to build a desk, I’m going to build a bed under my desk. So we’re going to have mid-afternoon nap time, because you’ve given me no meaningful feedback.

Christine Bilbrey: Right. Well and is the employer is going to see that performance evaluation as Exhibit A when they try to fire the bad employee?

Michael Cohen: Of course, they are. And in fact there’s a — there was a case in New Jersey a few years ago where a performance appraisal was the singular document they got a plaintiff passed summary judgment, because effectively what happened was the person who was fired, it was an aged case, and the person was fired was given a performance appraisal, I believe it was like six months earlier and the performance appraisal wasn’t stellar, but on a 1 to 5 scale, it was all 3s, everything was satisfactory. Person wasn’t lightning on fire, but certainly didn’t seem to be in any jeopardy of losing the job.

So, during deposition the person who created the performance appraisal was asked, how is the performance? Well, this has been a problem for six months, this has been a problem for nine months, this has been a problem for 12 months and then the plaintiff holds up the performance appraisal and what we’ve done is we’ve created pretext at that point.

Because all of a sudden, the employers articulated reasons for doing what it did, doesn’t seem so worthy of belief. The employers articulated reason for termination this has been a problem for six months, this has been a problem for eight months, this has been a problem for 12 months doesn’t seem all that truthful in light of the fact that a performance appraisal which was given only six months ago says that the employee was satisfactory that document got then passed summary judgment now all of a sudden we are dropped or more likely settling the case.

Christine Bilbery: And so you’re — you talk about not wanting to do the work of doing the performance appraisal, because it’s almost like there’s a laziness component to it. I don’t have time to do this, I don’t want to do it. The flipside is they’re terrified of the difficult conversation.

So to tell someone know you’re not doing a good job, let’s talk about how you could improve that conversation never happens and then the more difficult conversation that you’ve already talked about is when it comes time to terminate a bad employee and I have been at firms where I got there and they had several of the attorneys came to me with a list of people they wanted me to fire for them as soon as I’d gotten there.

Michael Cohen: Yeah.

Karla Eckardt: Classic.

Christine Bilbery: Yeah. I was like no, we’re not going to do it that way, where is the documentation.

Michael Cohen: That’s how it’s going to work, yeah.

Christine Bilbrey: Right and I don’t know these people, so you want me to be the bad guy and I have no personal knowledge of them. So, talk about what an employer should do leading up to the termination event. Once you know that it’s just not going to be able to get —

Karla Eckardt: And assuming you’ve conducted your regular performance appraisal.

Christine Bilbrey: Right. Or if you haven’t.

Karla Eckardt: Or you haven’t, yeah, right.

Michael Cohen: So, in an ideal world and honestly this should — this isn’t like a utopian concept this is an idea that should exist. A termination should not be a surprise to an employee the overwhelming majority of the time. Because conversations about performance had better be going on with employees who are not performing well, because that’s massively unfair to the employee because look the goal of performance management, the overarching goal more than anything else is not termination.

The overarching goal of performance management and that includes discipline that includes performance appraisals. The overarching goal is what, it’s fairness to the employee, it’s let an employee know that there’s a problem so that you can give that employee a meaningful opportunity to improve, because the goal shouldn’t be termination most times because imagine if it were advertise, hire, train, fire, that doesn’t work from a business standpoint. That is a bad model.

So the goal for performance management should be for lack of a better phrase I suppose, rehabilitation of the employee, getting the employee to perform where it is you need the employee to perform.

(00:29:54)

So assuming that we have done the performance management as we should have and when we talk about performance management, it’s not just performance appraisals, it’s not just documenting discipline, it’s actual human conversations with employees, letting them know that there are things that haven’t gone precisely the way they need to have gone.

And yes, this takes some time. It’s not massively time-consuming but it does take time. Assuming that we’ve done the performance management that needs to be done in terms of the coaching, in terms of the counseling, in terms of the informal conversations, in terms of the performance appraisals, in terms of the documentation, we’ve done all of that and things just haven’t worked out, right, things just have not gone quite well enough.

There are some steps we need to make sure we take before we have the actual meeting. One, let’s make sure that we’ve received approval from whomever within the firm we need to receive approval in making the termination, in determining that we’re going to let this person go. Let’s make sure that we’re articulating the basis for termination without making legal binding legal admissions.

For example, let’s assume we have a bad actor from an EEO standpoint within our firm and that person is engaging in wildly inappropriate behavior, we get a complaint, we conduct the investigation, HR administration conducts the investigation and the determination we make is we don’t make determinations as to whether there’s been harassment or discrimination, those are legal terms that a, reasonable people hopefully will never make.

We make determinations as to whether there’s been inappropriate conduct, we make determinations as to whether there’s been policy violations, that’s how it should happen, but instead the decision we make is we’re firing that person because that person created a hostile work environment.

Well, you’ve just created exhibit A, for the person who brought that complaint, if that person ever decides to sue you down the road. So when we make the decisions of termination, we’ve got to make sure that we articulate them in a way that doesn’t create a binding legal admission down the road.

So let’s make sure the approval process is handled the right way, let’s make sure we classify the termination decision. There’s a difference and you’ve both brought up and you couldn’t be more right, the fact that as partners in law firms, we don’t like very often to have the hard conversation, we don’t want to and certainly a termination conversation is a hard conversation.

So you’re getting ready to fire somebody and you’re sitting there thinking I really — I don’t want to have this conversation about termination based on poor performance. So what we’re going to do is we’re just going to eliminate that person’s position.

Now, we all appreciate there is a difference between a person elimination and a position elimination. A position elimination is we don’t need the function, the person elimination is we need the functions we don’t need you, in fact, we don’t want you. But there’s a big difference from a — for example, how long do we have to leave that job open.

For example, are we going to backfill that job, who is going to perform those responsibilities. If we use the articulation of position elimination, have we done some like math on the front end, because more often than not when a position is eliminated it’s done from a revenue standpoint. If we’re going to characterize it as a position elimination, are we ready to leave that position open for I don’t know example, six months.

Because if we — you fire Cohen, you fire me because it’s not for performance, it’s because you’re eliminating my job and then two months later, I see on Glassdoor, I see on Monster, I see on some website effectively my job being advertised. So what I’m about to say sounds a little crazy, but a plaintiff does not have to prove discrimination to prove discrimination.

One of the ways a plaintiff can prove discrimination is by proving what is called pretext, by proving that the employer’s articulated reason for doing what it did is not worthy of belief. So when you tell me you’re eliminating my job and then two months later, hire somebody to fill my job, you just created pretext, because you characterized the termination not as a termination but rather as a job elimination; when in reality, you were firing me because I wasn’t very good at my job.

And you created a discrimination issue because you didn’t want to have the hard conversations. So we’ve got to make sure we make these decisions without creating binding legal admissions. We have to make sure that the termination decision is classified the appropriate way and then one problem I see more than any other is the things we’re saying during the course of the termination meeting itself.

I don’t know, if you’ve ever — there’s a movie called ‘Up in the Air’, it’s a movie with George Clooney and –

Christine Bilbrey: Oh yes.

Karla Eckardt: I love it.

Michael Cohen: And it’s a wonderful movie, it’s — and it’s when I fell in love with Anna Kendrick, which I know nobody cares about.

Karla Eckardt: I love her too.

Michael Cohen: Yeah wonderful. The premise behind the movie is that George Clooney plays a consultant and he travels about the country terminating people. Companies hire his company and he is a consultant where he travels around making sure that people are let go the right way and Anna Kendrick comes in, she’s sort of the wunderkind and she’s going to recreate this entire process of how it’s done.

(00:35:06)

And the problem is Anna Kendrick doesn’t get the human piece of it. She doesn’t understand that there are certain things that you say and more importantly, there are things that you absolutely do not say during the course of a termination meeting. And these things are designed more often than not to make the person who is terminating the employee feel better and folks, this moment is not about you. This moment is about the person who’s sitting three and a half feet away from you, whose life you have just turned upside down in rendering this decision.

And because of that, there are certain things we absolutely cannot say during the course of a termination meeting. There’s like 9 or 10 of them that I typically will go through, but let me just give you a couple, so sort of the fan favorites.

Number 1, I know how you feel. Really? You’ve been fired by you before.

Karla Eckardt: Have you been fired?

Michael Cohen: Right exactly. You’ve had to go home to my wife and my daughters and tell them that you don’t have the first clue as to how I feel. Someday you’ll thank me when you find a job that matches your obvious gifts, but in the meantime, right when I can’t make my car payment, when I can’t make my mortgage payment but don’t worry I will send you a lovely handwritten note when I find that job that matches my obvious gifts, or couple of my other favorites.

Pardon the impersonal nature of this email but you’re fired, right. We don’t fire people by email. We had no choice, sure you did. What’s that others thing, right, you could have not fired me and then there’s sort of the granddaddy of them all, right, and this is the one that just dripping with sanctimony, which is this is harder on me than it is on you.

There are literally no circumstances under which it is harder on you to fire the person whom you are firing unless you’re firing like your maternal aunt who raised you. But those circumstances don’t arise often.

Karla Eckardt: Even then.

Michael Cohen: Yeah and probably even then, right.

Karla Eckardt: So now that we’re reaching the end of the employment cycle, on the day of termination, assuming you say all the right things and you don’t make any blunders leading up to the termination event, what are other things you should consider? You just mentioned the person, it’s the person’s worst day or one of the person’s worst days.

Safety wise, where should you have this conversation when so we often hear fire on Friday but we know that’s maybe not always the case. So what are other considerations that you would suggest?

Michael Cohen: Great question. So let’s talk about when and where. When I started doing talks like of this nature, when I started advising clients, to me sort of intuitively, what I would think is fire somebody on a Friday, fire somebody on a Friday, they have two days to get over it, they have two days to do some things that will put their mind at ease and get past it.

Except in reality, you fire somebody on a Friday and they have two days to do what, stew. They have two days to get angrier and angrier and angrier at you. They may be able to apply for jobs over the weekend, they’re not going to hear from a human in all likelihood.

I think to the extent you can avoid Fridays, you actually try and avoid Fridays. Some people in terms of what time of day, do you terminate at the beginning of the day, do you terminate at the end of the day. I think the answer is it depends. Some people ascribe to the view well you fire somebody at the beginning of the day because it’s kind of mean to have them work the whole day and then fire them at the end of the day.

Some people say fire at the end of the day because now you’re — at least, you’re going to pay them for the full day. My view, fire the person when the fewest number of that person’s co-workers are around, because for me it is a respect piece.

Karla Eckardt: Right, respect from beginning to end.

Michael Cohen: Precisely. I don’t want somebody having to come out of a termination meeting walking into a sea of his or her co-workers if I can avoid it. It’s not always avoidable, but to the extent that is something that can be done. I would prefer to do it that way which gets us to the where as well and in confidential an area as possible.

I want the person again not to have to walk into or out of a room into a sea of people whom he or she knows. This is a traumatic event. There’s no way to dress it up. This is an incredibly difficult moment for this individual and to have to walk out of wherever it is into that sea of co-workers would be exceedingly difficult, do it in HR, do it in an area of your office where this person is going to be able to do whatever it is he or she needs to do, whether it’s go back to their office or just leave and then come back another time. Let’s do it in a way that is your word exactly, right, the most respectful way we possibly can.

In terms of safety precautions which is a very real concern very often these days, make sure that we understand what the uniform sort of — we’ve taken steps in advance to create uniform safety precautions, do we know where we can get out in the event we need to go. What is our best opportunity for egress, our best opportunity for at the risk of sounding dramatic escape in the event that we need to?

(00:40:05)

Does there need to be a security presence available? 99% of the time there’s not and certainly we don’t want to potentially create a defamation claim by having for example, armed security which I just — look if you need armed security or if you think you need a security presence then I’m not firing the person on the job site. I’m going to do it some other way because if I’m really that worried about this person creating real danger, I don’t want the person on my jobsite at all. We’ll figure out another way to do it, but I don’t want you here.

But sort of ordinary course, what’s the uniform, what’s the escape route, have we taken sort of these safety precautions in advance to ensure that in the event that this person has a difficult time, we can at least extricate ourselves from the situation.

Christine Bilbrey: Excellent point. And a lot of good information for our listeners.

Karla Eckardt: Yeah.

Christine Bilbrey: So it looks like we’ve reached the end of our program and I want to thank you Michael Cohen for joining us today.

Michael Cohen: Oh it is absolutely my pleasure, this was fun. I had a good time.

Christine Bilbrey: And also Karla and I saw that you are a featured speaker at the upcoming ALA Conference, so expect to see us in the front row, we will be there again.

Michael Cohen: Make sure you hackle.

Christine Bilbrey: If our listeners have other questions how can they find you? Are you on social media?

Michael Cohen: Sure, I am. Certainly I’m on Twitter. My Twitter handle is @cohen_HR_Law. I am active on Twitter. I am more active on LinkedIn. If you search Michael Cohen, in all likelihood you will not find me or you will find somebody else. Michael Cohen Duane Morris works pretty effectively if you’re trying to locate me.

Christine Bilbrey: Perfect. Thank you. So if you like what you heard today, please rate us in Apple Podcasts. Join us next time for another episode of The Florida Bar Podcast brought to you by LegalFuel: The Practice Resource Center of The Florida Bar on Legal Talk Network.

I am Christine Bilbrey.

Karla Eckardt: And I am Karla Eckardt. Until next time, thank you for listening.

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