Community Table: When It’s Time To Fire An Employee…

Episode Notes

Transcript

Christopher T. Anderson: Hey listener, you can participate in the community roundtable free and get feedback on issues you may be facing in your solo or small firm practice.  On the third Thursday, of every month, lawyers from across the country join me to discuss any questions brought to the group.  RSVP free of charge and secure your spot at the virtual roundtable by visiting the link found on The Un-Billable Hour page at legaltalknetwork.com.  We hope to see you there.

Before we start the show, we’d like to thank our sponsors Lawclerk, Belay, Lawmatics and Lawyaw.

Intro: The Un-Billable Hour Community Table where real lawyers from all around the country with real issues they are dealing with right now meet together virtually to present their questions to Christopher T. Anderson, lawyer and law firm management consultants.  New questions every episode and none of it’s scripted.  The real conversations happen here. The first two segments today deal with an attorney who is an employee, who won’t fully comply with the duties of their job, with the attorney struggling to find and hire a replacement.

Female 1: As the owner and manager of the law firm, I try to come up with the best way to do things, the process, the checklist, et cetera, and I set them out along with samples to the staff and say, okay, you’re going to be handling this estate planning matter.  Here’s a drafting guide.  Here’s a sample estate plan.  Here are the commonly asked questions, et cetera.  I have someone who does a great job but this person refuses to do part of what I consider to be the job, tracking their time.  They refuse to track their time and for example —

Christopher T. Anderson: Passive-aggressively or just out there and just like I’m just not going to do it or they likely say —

Female 1: They don’t say, I’m not going to do it, and I’ve done all the suggested things where I like explain why it’s important, I explain why it benefits the firm, I explain how it benefits them, I explain why we need it so we can assess capacity, bring on additional support as needed, expectations that we have of the employee, expectations we can communicate to the client, all of these things.  I ask, do I have your buy-in, do I have your agreement, sure, I’ll do it, but when I look from July 15 to August 15, there are 27 hours tracked.  Her position is she works on flat fee matters, It takes up her time, et cetera.  She doesn’t want to do what I want her to do and I can’t find somebody else to do it or I haven’t been able to find someone else to do it yet.

Christopher T. Anderson: But both of those statements were false.

Female 1: Well, that I haven’t found someone yet.

Christopher T. Anderson: No, that one’s true.  The first statement you said was you can’t, the second one said that you haven’t been able to.  Now the last one was that you haven’t. That’s true.  The other two are not.  But so is that where you are?  I’ll come back to that and just kind of help wrap your mind around that for a minute.  But is that what you are right now?  Is that person going to go?

Female 1: Right now, it’s not sustainable.  I’m not willing to boot this person today because I can’t take on an extra 30 hours of work a week.  I just physically can’t.

Christopher T. Anderson: But have you made the decision that this person has got to go.  Remember, once you make that decision, your timing is all yours.  You don’t have to — it doesn’t lock you into any timeline.  It’s just a decision.  You’re going to go this way and you’re not going to go that way, and making that decision is a really important step towards the hiring process, because you’re now hiring an open position that you need to film.  What I was getting at with I can’t hire and then I haven’t been able to hire is that those are both defeating statements that are not true.  You can and you were able to, you just haven’t yet. You haven’t done what it takes to get them hired, to get somebody hired, and it’s not a judgment.  What it takes might be pretty big but I have no doubt that if I set my mind to it, I could hire somebody for that role in your business in a week. Something critical was at stake for me.  I could get that done, and I know you can too.  But you’ve got a lot of other stuff going on and maybe we’ll try to rehabilitate.  There’s a lot of softness around that needing to hire.  So tell me what you have done and I’ll help you get this done.  What have you done to hire?

(00:05:04)

Female 1: I’ve talked to other paralegals.  You and I have — I’ve been in the room when you’ve had this conversation with other people and sometimes even with me before.  So talk to other paralegals.  I’ve reached out to some people on LinkedIn.  I’ve done job post.  I’ve done different styles of job post.

Christopher T. Anderson: Where have you posted?

Female 1:  I use WizeHire, which sends it out to different sites.  I’ve posted at schools that have paralegal programs with job searching capacities, and even in just colleges in the area.  I’ve posted on LISTSERV for attorneys in this practice area with the State Bar.

Christopher T. Anderson: Now you’re hiring a para or an attorney?

Female 1: Para.

Christopher T. Anderson: Okay, that’s what I thought. I thought you said I LISTSERV with attorneys, just basically asking them if they know anybody.

Female 1: Yeah.  Like I did sort of script by script what you said.  I said, hey, colleague, whenever I’ve worked with your office, your para X is always great.  I promise I’m not trying to poach her.  Is it okay if I speak with her and ask her if she knows of anyone that might be interested, and they said, sure. Thank you so much.  That’s so nice to hear.  I really like her too.  You better not try to steal her.  I promise I won’t.  Then I have the conversation, then they’re like, oh I really appreciate.  I’ve done it twice.  Like, oh, I really appreciate that, but you noticed that I take pride in my work and sorry, I don’t really know anyone, but I’ll keep my eyes out.

Christopher T. Anderson: Those are all good things to be doing, and then you got the script just about right.  So that’s really great.  So then we have to think about what aren’t you doing, because obviously, if — so how long have you had the job posted on the WizeHire and talking to other paralegals and leaching out on LinkedIn and putting stuff on LISTSERV and making these calls, like how long have you been in this process for this role?

Female 1: For this role, I’ve done this a few times and I sort of come up against what I felt were dead ends and I decided I would just make it work.

Christopher T. Anderson: Okay, for this person.

Female 1: Yes, for this person, most recently since Monday.

Christopher T. Anderson: Okay. So that’s like zero time, but yeah. And other than the timekeeping, how is she at this job?  If she was perfect at her time keeping would she be a total keeper?

Female 1: No, her work product is quite good, but she works really hard to maintain the mystery of how she gets from A to Z and my multiple requests for writing up what she’s doing, her processes, et cetera, are like 25% kept and 75% ignored.  She also unilaterally decided that her job was permanently remote as COVID has come to an endemic state.

Christopher T. Anderson: Is that a problem for you?

Female 1: I offered her — I said, I don’t need you in the office every day, but it would be very helpful to me if you would be in the office three or four days a month, maybe like two days one week, two days another week.

Christopher T. Anderson: Why is that very helpful for you?

Female 1: One, we could load all of our signings into those days because sometimes things need — not all of them, but we could load signing appointments on those days.

Christopher T. Anderson: You’re still doing all signings in-person?

Female 1: They have to be in New York, you need wet ink, and there’s a presumption of validity when it’s supervised by an attorney.  So most of them are in the office.  Also, although I know virtual is great and I have people that work for me on multiple continents that I’ve never met, I like sitting in a room with someone once in a while to go over things.  Maybe I’m a fatty 09:09.

Christopher T. Anderson: Listen, you’re the business.  You’d like it.  It’s efficient, okay.  I mean that that you don’t have to justify it.  That is a sufficient answer.  You didn’t come to that answer until just now.  That’s a sufficient answer.

Female 1: I’ve had that answer for quite a while.  The unilateralness, she doesn’t ask for time off.  She informs me that she’ll be off that day.

Christopher T. Anderson: How long has this person been with you?

Female 1: About three years.

Christopher T. Anderson: When was it that you set these expectations for that’s how she’s going to interact with you?

Female 1: I think she just sort of put them together for herself over time and I didn’t push back.

Christopher T. Anderson: In a world where you’re 100% responsible for this, when did you allow — was it because you didn’t push back at some point?

Female 1: I did, but I guess not strongly enough for her.

(00:09:55)

Christopher T. Anderson: Yeah, this person is walking all over.  She’s not doing the job the way you asked her to do it.  She’s playing games with you when you ask for information.  This is this is an unhealthy relationship.  So decision has been made now we need to fill the seat.

[Music]

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[Music]

Christopher T. Anderson: Decision has been made.  Now we need to fill the seat.  You’re doing some good stuff.  At some point, the recruiter is not a bad idea.  At some point, you have to do more of it.  On WizeHire, do you boost your post on WizeHire?

Female 1: I did.

Christopher T. Anderson: Okay, good. You said, you’ve reached to people on LinkedIn.  Have you used LinkedIn’s hiring platform?

Female 1: Not this week, but I have.

Christopher T. Anderson: I mean that’s another thing to do.  You said you started on Monday.  So I mean it’s just like a full court press where you need to be heavily just reaching out to the folks in the way with a script that you said, but I mean just like over and over and over again.  So it’s like every family or estate planning attorney that you can think of that has decent staff to talk to them.  If you don’t have the bandwidth to do all that because you also are right now of one-armed paper hanger, doing all the work in your office, then you’d probably need to get with someone that can offload some of that heavy lifting for you, someone who is going to actually do headhunting.  Most of most of them suck, but there are few that don’t.

Female 1: So I spoke with a headhunter, with a recruiter, whatever you want to call her, and I liked her a lot, and then she sent me her proposal and she wants me to pay her like 15 grand, and she’s going to present two vetted and ready to work, at least two vetted, appropriate, ready-to-work applicants.  So I’m like, but what if I don’t like either of them, what if they both smell bad.  And she’s like, well, you paid for my time.  Like, is this the new — and I spoke to my mom who’s been in the business —

Christopher T. Anderson: There are some folks who do —

Female 1:  Many years and she was like, what no, no, they don’t get paid until they deliver someone that you successfully hire and you’re going to keep for a certain period of time.

Christopher T. Anderson: Listen, different recruiters have different contracts.  Some of them do pay like a contingent fee.  You pay them a percent when you do hire.  Some of them do this model and some of them do a hybrid.  So there are a lot of different ways.  If you don’t like that way, if you don’t trust, then you should go with one of the ones that gets paid upon successful hire.  The last step that I’ve got to ask is, in this environment what are you offering for pay, what’s your comp package, because I’m smelling that as being the problem.

Female 1: 70,000.

Christopher T. Anderson: Flat, no incentives.

Female 1: I can definitely come up with incentives.  I mean, I haven’t gotten to the point of having that conversation with anyone of coming across anyone that I want to have that conversation with.  We have holidays, PTO, 401k with matching, health insurance, like all of that.

Christopher T. Anderson: So on WizeHire and when you put it out there in the world, it says 70,000.  That’s what it — plus benefits, or how do you have it out there?

Female 1: Yeah.  So keep in mind like this is not also — and listen if an extra 10 grand will get me the right person in the seat, I will totally do that.  This is almost not really a paralegal role.  This is like you speak nicely with clients, you take information, you put it into software, you follow the rules I give you, you generate documents.  Like, it’s really more of a legal secretary, I think, or I know some people call them drafters.  Like, this is not someone who’s doing legal research, doing legal writing like sort of formal paralegal does.

(00:15:05)

Christopher T. Anderson: Right. So is your ad out there for a paralegal?  Maybe it shouldn’t be.

Female 1: What do you put as the role, legal secretary?

Christopher T. Anderson: I mean, you said, the words, legal secretary, drafter, I like drafter, drafting assistant, legal assistant.  There’s a mismatch here.  You’re putting it out there as a paralegal at $70,000.  You’re telling me that’s not what the role is.  The world — paralegals are going to look at that and they’re like, well, there’s a mismatch here.  You should be getting some candidates, but paralegals right now are tough to hire and you might need that.  I predict if you put it to 80, I’m not suggesting you do it by the way, but if you put it to 80, you get lots of applicants, because you would be standing up above the market, and I think that would make the difference.  But I think you have found a possible other solution.  I would open up a second role.  Leave the paralegal role open on WizeHire and put a second role up as legal assistant or drafter, and keep everything the same.  Drop the salary, put benefits and production bonus, and I’m willing to wager that you will get better quality applicants than you’re getting now, and more of them.

Female 1: One more question.  What do you think about the whole idea of don’t apply through the website but email it and put this in the subject line, et cetera?

Christopher T. Anderson: The answer is you should apply through the website because there’s good things that happen at the website.  I’ve been reviewed — so my processes that I believe in is I have them, if I’m not working with the recruiter, I have them applied through WizeHire or whatever other platform you’re using.  I review.  I give an initial review to the resume and cover letter, if they sent one, and they usually call 80% that way, and then I send the email request that they do all the things that I wanted, call it a quiz, call it an exercise, is what I call it.  They do all the things and the exercise, like sending you back an email with your name spelled backwards and the thing in a PDF and whatever questions you want to ask and all that stuff.  You do that to the smaller number.  I think it’s more respectful to the applicant’s and it’s more respectful of your time too in reviewing those things, and it enables you to leverage the power of the softwares that you’re getting discrete reports, because you’re getting on WizeHire, you can do assessments and you can do — you get all that done as well and it really enhance the process.

[Music]

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Male: For our final segment an attorney is weighing whether to rehab or fire an employee who isn’t complying with the firm’s policies.

Female 2: Somewhere along the way, you had mentioned respect and disrespectfulness of what you want to see happen, and not that I’m a dictator or anything, but like the pure basic bare minimum like I try to rehab you and you continue to just not care. Perhaps not even outwardly but a passive aggressiveness of not caring.  So that is continuing to happen in my particular situation.  As of Tuesday, afternoon around 3:00, particularly Chris, I was planning on attempting to rehab this person or try to get some additional clarity as to why this person does what she does or doesn’t do what she doesn’t do, and like really the issue behind the issue.  But another thing happened today, in the big scheme of things, very minuscule and not important, but it really solidified that statement that you made that this is just an ongoing, I guess, lack of a better phrase, an ongoing F U kind of a thing.

(00:20:02)

I had set a email policy in place intentionally.  I mean, I had one.  Everyone was loosey-goosey with it.  We had an accidental breach on Sunday.  I got nervous.  Again, it all turned out okay, but that was a warning sign to me.  So I reiterated the policy to the team.  I said it’s nonnegotiable.  These internal communications will not be done by email.  I don’t care what it is.  It all goes through our team channel.  Are you reading this?  Please acknowledge you read it, accept it, and will comply.  Yes, yes, yes, yes, yes, yes, down the line, no problem, yay, yay me, good leader.  Lo and behold today, it’s like it never freaking happened.  On this particular person who keeps can just not caring about the structure and not caring about the stuff.

So I’m sitting here wondering, what the hell am I doing?  What the hell am I doing?  I mean, perhaps a decision has been made.  The timing is not going to happen right now at all.  But has a decision been made or should I continue to attempt to rehabilitate on the off chance that I might be — I have very bad promo(ph).  So I might be missing an opportunity if I don’t explore it further versus just saying, I can’t do this anymore.  I’m spent.  I’m exhausted.

Christopher T. Anderson: So what’s the new thing that happened?

Female 2: This person had a question about the paycheck, basically.  It was benign.  It was benign, and of course I forgot so I responded to the email.  It was an internal communication.

Christopher T. Anderson: Got it.  That’s what I wanted to know.  It was an internal communication that she sent by email.

Female 2: But it gets worse.  So I had responded, and then I followed up, I said, oh no, we both want — I gave them one free shot for the week.  If you screw up this week, no big deal, but I said, oh no, we both screwed up.  We both lost our free pass for the week.  So I said anyway, moving this to our other system, and the response was, no we didn’t or at least I didn’t, because I don’t think this topic should be discussed amongst the rest of the staff.  And I said, what the hell are you talking about?  I didn’t say it like that.  I was like, what do you mean?  We have a private channel, which this person has been communicating with me on a lot.  So I said, listen, I said, I’ll something in our private channel so you know where it is and you can ping it, easy.  So I wrote, here’s our private channel as you can see, and the response was like, fancy.  Fancy, you’ve been here six months.  What’s happening right now?  It’s as like this was a new thing.

Christopher T. Anderson: You set a policy.  You set one free chance.  That one has happened with some bizarre incomprehensible explanation.  But that’s what happens.  So now that one chance has been used up and just stick to your policy.  I mean, when you say — we ask the questions that has a decision been made or am I going to go back to rehab or whatever.  It’s like I often come to that exact question with people.  I’m like, what’s not working, because I try not to be knee-jerk, because like you and like everybody, I know the pain of recruiting.  Whether I have a recruiter or not, it’s still a pain, even if either with zero pain in actually the recruiting process.  The process of bringing someone new on board is a giant pain.

So I always have that in mind, but I also know that what I’m willing to tolerate and what I am not.  So when I come to that point where I think it’s time, very often, I will create a, for lack of a better terminology, a performance improvement plan, a PIP, and I will communicate with that employee.  I’m like, here are some things that aren’t working for me, and I think it’s important to communicate these to you, because you may want to fix them.  You may want to work on them, and I spell them out very clearly.  And I expect your billing, I’m seeing you log 22.5 billable hours.  I’m expecting 30 by the end of — and I’d say, by the end of next month, three out of the four weeks you’ll hit 30 and you won’t have gone below 27, and then the following months, you’ll be above 30 consistent.  And I’ve noticed that when you are communicating with clients, you’re not making any log of that communication with clients and we expected to see that.  I’m thinking of one person in particular, just because this is the one that I did recently.  There was a third thing.  I don’t remember what it was.  Oh yeah, you’ll be prepared for scrum.  When you come to the scrum, you’d be prepared and succinct, because you saying um and thinking, it’s wasting everybody’s time.

(00:24:57)

I said, so this is what’s important to me, if it seems like that’s a big ask, then that’s fine.  But that’s certainly your call but this is what my request is.  Would you like to challenge yourself to do this, to be able to rise to this?  So I get to the affirmative.  So it’s not like a PIP that I had, like go do this or you’re fired.  It’s like, you’re basically — what I’m basically saying.  I don’t use the words like you’re fired right now, but here’s how you can choose to keep your job, but I never say it that way.  So the words I actually use are these are things that are not working well for me and they’re very important to me.  Are you willing to step up and take the challenge to operate in this way?  Because if so, I think, I’ll be very happy and I think you’ll do much better in your role.  But if not, I totally understand.  I’m giving you the choice.  But then the most important thing carries, and I stick to it.  If those benchmarks don’t happen, then my decision is final, and then I do it on my own time, when the time is right for me.

Female 2: So you sit down and have a conversation followed up with a piece of paper or do you do this in an email?

Christopher T. Anderson: Usually, I do it in a conversation and then I follow it up with a detailed slack, because we don’t do any of this internal communication right now.

Female 2: As I am saying it, I might follow, yeah exactly.

Christopher T. Anderson: But that’s my policy too, that’s exactly my policy.  We do not do any internal communications by email.  Yeah, and that’s the exact process.  Then to me, I’ve got one right now, it’s that person walking and in my business.  It’s not convenient right now for me to terminate this person, but it doesn’t change despite the fact that I’ve made a decision and the people that need to know know that I’ve made that decision.  I always try to make sure people know so that I don’t get wishy-washy.

Female 2:  Right.  Would it necessarily be bad if I avoided the conversation and just did it by electronic means, I mean in our channel?

Christopher T. Anderson: I think it’s better to have it as a conversation because there’s going to be feedback and some back and forth that I think is better, but it’s better to do it by selecting not do it at all.

Female 2: Okay.  Would you suggest having the conversation first and then following up with the email or doing the email and then following up with the conversation?  I’m sorry.  I keep saying email, I meant electronic form or do the electronic form and then follow it up with a conversation.

Christopher T. Anderson: I would start with a conversation. That’s just how I would do it. I mean, I’d just like to call them up and I say, hey, I need about two minutes of your time to hear these things that aren’t working for me. Here’s what I think.  Then I don’t make them answer even at the moment.  I said, listen, if you want to think about it, about whether this is something you want to commit to, that’s fine.  How long do you need, a day, two days, three days?  That’s fine.  It’s a low pressure situation.  It’s me giving them an opportunity to tell me whether they think they’re up to what I need.

Female 2:  That makes sense.  Thank you.

Christopher T. Anderson:  You’re welcome.

Outro: Thank you for listening.  This has been the Un-Billable Hour Community Table on the Legal Talk Network.

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