Archive for Monday, April 19, 2004

You’re fired: Companies use other words, tactics to oust employees

April 19, 2004

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Millions have been tuning in to watch Donald Trump squint, purse his lips, and with a swoop of a stubby finger, utter the catch phrase of the day: "You're fired!"

The words that punctuate each episode of "The Apprentice" TV show are unambiguous, blunt and final.

They're also largely fiction.

Fear of lawsuits has made the fantasy firing mostly obsolete. Trump himself, hardly Mr. Sensitivity, says he rarely uses the term in real life, although he told Newsday he found it "succinct and beautiful."

'Managing out' workers

Instead, many companies have adopted more surreptitious ways to get rid of unwanted employees. Human-resources experts call it "managing out," a way to nudge an employee out the door while also minimizing legal exposure. Sometimes, it involves making a worker's job so miserable he'll quit; other times, it may mean building an airtight cause for a firing -- even if the cause is bogus.

In her 13 years as a human-resources executive and consultant in San Francisco and Seattle, Cynthia Shapiro has pushed out unwanted employees using a string of methods: setting impossible goals, giving problem workers the clients no one else wants, taking them off a project they love or surprising them with a bad performance review.

Most of the time they quit, never knowing that their exit was orchestrated.

"It's an art form, really," Shapiro says matter-of-factly.

She helped move out one employee, a hardworking guy liked by his co-workers but not his supervisor, by arranging a business trip on the day he was to compete in a surfing contest.

"He threw a fit, and we were able to let him go for insubordination."

She forced out another, a talented woman who bad-mouthed the boss to a client, by giving her the worst assignments and cutting her budget.

On the surface, managing out can look like a normal disciplinary action. In both, employees are told they need to improve by a set date or face consequences. But while a straightforward correction plan, which often involves extra training or even mentoring, is designed to help the employee keep his job, surreptitious managing out ensures that he won't.

Sneaky tactics unnecessary

Of course not all employers resort to sneaky tactics to get rid of someone they consider a troublemaker or an underperformer.

"If you're a company trying to avoid unemployment benefits or a severance payment, I suppose you would do it that way," says Janice Clusserath, a former human-resources executive from Redmond, Wash. "But a company that's reputable and cares about its employees wouldn't do that."

Instead, the emp-loyer typically ex-plains where the worker is failing and sets up a probation program that may include more job training and coaching. If he hasn't improved within a set time, he's terminated.

"I've never, ever said, 'You're fired,'" Clusserath says.

In theory "managing out," whether straightforward or sneaky, isn't even necessary.

Like most of the country, Washington is an at-will employment state. This means companies don't need a reason to fire someone who isn't protected by civil rights laws, certain state statutes or employment contracts.

"You can be fired if the boss doesn't like your shoelaces," says Kelby Fletcher, a Seattle lawyer who represents workers in employment cases. "I get a lot of calls from people who lose their jobs. Most of the time, there's not a whole lot you can do."

But few want to risk a successful discrimination case, which brings a median award of $200,000 and possibly much more, according to Jury Verdict Research. Thus, workplace discrimination suits have increased more than 2,000 percent since 1970, according to lawyer Steven Sack, the aptly named author of "Getting Fired." They account for a fifth of all civil suits filed in the United States.

"Companies are scared to death to tell employees the truth," Shapiro says. "If you give employees a little bit of ammunition, they're going to run to the nearest lawyer."

This is one reason the magic phrase "you're fired" is so rare.

In many cases, claims are filed not because the worker was fired, but because of how the worker was fired.

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