Getting Down to Management Basics: My 5 Postulates of Employment Law

Attorney Mark Neuberger of the law firm Foley & Lardner.
Attorney Mark Neuberger of the law firm Foley & Lardner.

Editor’s note: Sometimes, readers ask about past TLNT articles that they have heard about but may have missed. That’s why every Friday we’re republishing a Classic TLNT post that some of you have asked about.

By Mark J. Neuberger

Having worked in corporate human resources for 10 years and practiced management-side labor and employment law for over 20 years, I am convinced that effective management of human talent is in large part, dependent upon the ability to accurately predict future human behavior.

Certainly this is true when recruiting and hiring talent, but is also true if employers want to successfully negotiate recurring management problem areas. While each employee situation poses its own legal risks and challenges, over the years I have developed some guiding principles to deal with recurring situations.

I call these “Neuberger’s Postulates of Employment Law” and here are the first five:

1. When you terminate an employee for whatever reason, they get angry, very angry.

This may sound axiomatic and obvious, however in the course of regularly advising employers through all types of terminations, I am amazed at the inability of management to prepare for the termination by attempting to view the situation from the perspective of the employee who is about to be terminated. While different people react differently to bad news, if you try to place yourself inside the mind of the particular employee you are about to terminate, you can be able to minimize the risk of things going wrong.

I believe this postulate was validated by some of the scenes in last year’s Academy Award-nominated George Clooney movie Up In the Air, where Clooney plays a professional outplacement consultant who is hired by companies to deliver the bad news. The movie shows multiple scenarios of Clooney delivering the message to people he has never met, nor has any real understanding about, what impact the layoff decision will have on their lives.

No one likes to have to fire or be fired, but if those delivering the message take the time to plan and anticipate, I truly believe the risks of litigation are diminished.

2. When having a reduction in force, consider offering a job in the Montana territory.

Many years ago, I advised a client who was terminating hundreds of long service employees engaged in retail sales all across the country due to a decision to exit a particular line of business. At the same time, the company had one traveling sales position vacant in Montana. It was an undesirable job in that it required driving hundreds of miles to see each customer, many of whom purchased only small quantities of the product. The client offered that job in Montana to many of those whose jobs were eliminated.

When given the choice between a reasonable severance package or the job covering the Montana territory, everyone chose the severance option. The lesson learned is that offering employees alternatives, however unpalatable those alternatives may be, helps the employee to understand they are not being unfairly singled out for layoff and allows them make a choice so they feel as if they have at least some control over their destiny.

3. Employees who are arrested, but not convicted, are generally, but not always, innocent until proven guilty.

When employers become aware of alleged criminal activity by an employee, there is an immediate impulse to remove them from the workplace. While private sector employees generally do not have federal constitutionally protected rights, employees who are disciplined or discharged due to alleged criminal activity that has seemingly nothing to do with work will declare “Aren’t I innocent until proven guilty?” The answer is, “it depends.”

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Often times, allegations against the employee will have negative implications for the employer. Consider this hypothetical: a high level finance manager in a publicly traded company is arrested for a mortgage fraud scheme having nothing to do with their job or their employer. There is widespread publicity in the media concerning the arrest and each news article specifically mentions the name of her employer. Calls come into the company from the employer’s bankers and auditors asking “Is this really the same person?”

Given the job which this person occupies, the nature of allegations, and the adverse publicity brought upon the employer, termination prior to conviction is probably a reasonable course of action in states where there is no legal prohibition.

4. Bad things happen when there is a full moon.

Every HR manager will always be faced with weird and unusual situations — even natural disasters. Many HR managers tell me these events seem to come in waves. Each of these requires a prompt and decisive managerial response.

While you cannot prepare for what you don’t know, effective HR managers will prepare their management to develop a decision making process. That process can be rehearsed through drills and simulations allowing management to respond to virtually any crisis in a manner which insures minimal business disruption. If disaster training can work for first responders, why not management?

5. If you don’t have the guts to provide straight and honest feedback, you’ll be perpetually stuck with poor performing employees.

Virtually every HR manager I have ever met has preached the benefits of timely and unbiased feedback to employees. Virtually every HR manager I have ever met also complains of their management’s unwillingness to provide such feedback or complains about their ineffectiveness in delivering feedback. On top of that come the games played to manipulate performance appraisals in order to achieve a desired political or financial outcome.

Regardless of what type of system is used, there is no substitute for straight and honest feedback. As a lawyer defending claims of discrimination, I want to be able to tell the jury a rational story of a business problems created by an under performing employee. I continue to believe that most jurors have a keen sense of honesty and fairness and will be able to tell when it was the employee’s fault and not the company.

Additionally, managers who are “chicken” and unwilling to confront under performers are missing a great opportunity, because most under performing employees will eventually ‘get it” and will eventually find another job. Like I always say, “a quit is better than a fire,” but that is a postulate for the next article.

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