Successful Terminations

Allison Williams: [00:00:11] Hi everybody, it’s Allison Williams here, your Law Firm Mentor. Law Firm Mentor is a business coaching service for solo and small law firm attorneys. We help you grow your revenues, crush chaos in business and make more money.

 

Allison Williams: [00:00:25] Hi, everybody, it’s Allison Williams here, your Law Firm Mentor. And on this week’s episode of The Crushing Chaos with Law Firm Mentor podcast, we’re going to talk about a topic that I think is not really given a lot of energy and attention because it’s such an undesirable topic and it’s the topic of letting people go. Now, I’m not going to go into all the logistics of how to let people go, because one of the things that I always recommend as somebody that owns a multi-million dollar law firm and made the choice to invest and help in this regard early on in my journey, is that you really need to have an employment lawyer on your team of advisers for your law firm. Now, a lot of you may be thinking, hey, wait a minute, that sounds like expensive. Lawyers are not cheap. I know. I am one. But here’s the thing. Like, even if you just start a relationship with an employment lawyer where they’re not on retainer, per say, but they give you some initial guidance about what to do to get yourself structured and get yourself consistently implementing procedures that are going to reduce risk. It will take so much stress out of the process of making the decision to let someone go and of actually letting them go in a way that reduces risk that you’re going to have a problem down the road.

 

Allison Williams: [00:01:40] OK. So I really can’t speak enough. Shout out to Greg Salka. Greg is my employment lawyer. He’s a phenomenal attorney and he’s become a friend. But he has really given me a lot of peace of mind. And he has said no to me far more than I ever would have thought. In fact, people used to joke about the fact that, well, a lawyer is just somebody that you hire to tell you no. And with Greg, I very much feel that way. Lots of times I said, hey, I think it would be really cool to do this. And he’d be like, no. And I’d be like, but Greg. And he’d say, No, no, no, no, no, no, no, no, no, no, no. I’d say, Greg, there’s got to be a way. And like, there is a way, but not without the risk of you getting sued. And so a lot of times my creative mind was just shut down, but it was shut down in a way that ultimately gave more continuity, consistency and safety in my business, which frankly, I personally see as not just the responsibility of a CEO, but also a gift that I give to my employees, that I don’t create risk of their jobs or risk of me being less than my best self because of the stress that would come not having these things taken care of in advance.

 

Allison Williams: [00:02:52] So wherever you are, highly recommend that you form a relationship with an employment attorney. All right. Caveat aside. There are three things that I want to talk about when we talk about termination, and I am not a big fan of firing people. I will tell you, when I first became a law firm owner, the very first person that I had to fire was a a basically a college kid who came to, like, help out. And he became my legal secretary. And he’s such a great guy. We’re still friends to this day. But he wasn’t a trained legal secretary and I needed someone who could fill that role. So I hired someone and then I made the decision to let him go and I cried the night before. I couldn’t stop feeling bad about myself. That was a real struggle. And then the next person that I terminated was somebody who had been a loyal employee of my office for, at that time a couple of years. But this person just couldn’t keep up with the growth of our business. And essentially the business outgrew her. And that was something that I took very personally. I said to myself, why? Why can’t I be a good enough employer that I can give this person what they need, that she can be on this journey with me. And that was also really painful.

 

Allison Williams: [00:04:10] I mean, this was the subject of therapy sessions and coaching sessions and thought work and outlines and strategies and demotions and moving her from place to place. And I put myself through so much torture trying to hold on to someone because I cared more about the way that I was going to feel about myself when I let this person go, then I cared about what was ultimately best for my business. So I rationalized not terminating someone. And I know that I’m not alone in engaging in that behavior because I hear it from you guys all the time that you don’t like to fire people. You see it as a personal failure when you have to, and as a result, you don’t elect to. So the very first thing, the very first mindset strategy we’re going to talk about when we talk about successful termination is that bad employees fire themselves. Now, for those of you that are saying, hey, don’t I, as the business owner, have a responsibility to create the best work environment and ensure that the work is consistently done and provide training? And what if I can’t afford to provide but so much training? And here’s the thing. Your business is at the stage that it’s at. You have to accept that it is what it is. OK, you may not have White & Case money in your law firm, so that means you may not have training systems at the White & Case level.

 

Allison Williams: [00:05:38] You may not be able to provide seven weeks of paid vacation to someone. You may not be able to allow people to have a part time job where they share their job with another person. That policy may not work for you, where the stage of a business that you’re in and your business may not be highly systematized. Right. That is also not a moral failing on your part. All that you can ever be expected to do is your best. So if you are doing your best, I want you to seriously focus your attention on asking the question, does this person, whomever it is, does this person fit with what this business currently requires? And if they don’t, and the extent to which they’re not fitting with what the business requires is causing friction and therefore risk for you, for other employees and for the economics of the business. It is your responsibility as the CEO to let that person go. But you’re letting them go doesn’t mean that you caused them not to be successful, right? Some people can be successful in utter chaos. Some people can’t. Some people can be successful in highly rigid, highly rigid, highly structured environments. Some people can’t. Some people can be successful in businesses that have a lot of staff and a lot of people to depend upon, a lot of people to remind them of things. Some people can’t.

 

Allison Williams: [00:07:09] Right. And I remember when I was at the stage of just starting out on my own, I separated from my partner, started a partnership. Very poor choice. Partner and I amicably separated. And then I’m off on my own. And I remember I hired a lawyer who was just an exceptional guy and he was a very good lawyer. But I didn’t have a lot of staff. I had one team member at that point, and this lawyer required more structure, more guidance, more oversight, more handholding, more secretarial support, someone to calendar things for him and diary and remind him and and structure things and keep clients at bay. And to some degree, the one person that I had did that. But to some degree, I had so much volume at that time. She really had to do that more for me. And to the extent that she did it for him, it was to keep us ethically compliant. But she could not be all the things that he needed. And therefore he was not successful in my law firm as it was at that time. I often joke about the fact that if I hired him today and he joined my law firm today, I bet he would be killer at it because he’s a talented person, right? My letting him go wasn’t, it wasn’t to say you aren’t good enough to be a lawyer with me or even that you’re not good enough to be a lawyer in a law firm. But you’re not what this law firm requires. Right?

 

Allison Williams: [00:08:39] There’s a disconnect and you have to release yourself from the idea that your law firm should be all things to all people with all levels of talent at all times. That is not your responsibility. It is your responsibility as the owner of your law firm to make the most of yourself and to thus make the most of your law firm so that your law firm delivers ethical services to the public at an appropriate rate of compensation that you can charge and create for you as the owner of that business, the one who is ultimately taking the most risk in that business, the life that you desire to create. That is your responsibility. Your responsibility is not to every person that you hire to ensure that whatever they’re able to give your office can accommodate a need for their skill set. It doesn’t work that way. All right. So I give you that so that you understand first and foremost that bad employees fire themselves. And by bad, I am talking about bad for what you need. Right. There’s a disconnect between what your business requires and what the person has available. And that’s not a moral shortcoming that can be. Some employees really do have moral shortcomings. It’s not an ethical shortcoming. It could be, but it’s not inherent.

 

Allison Williams: [00:09:58] It is a shortcoming in whatever your business needs that they are not able to get. All right. Number two, next, key strategy to understand when we talk about successful terminations is the actual termination. So first, you have to understand that you should keep it short. OK, here is a time where we need to be very, very mindful of the mantra that says anything you say can and will be used against you. OK, so that means you want to say as little as possible. This is not a diatribe on all things that ever happened in the relationship. You’re not going to write out and lay out for the person all things that they ever did wrong or all the things that they ever said or all the ways that you couldn’t get them to a place of yes. OK. You want to let them know that the decision has been made. It’s not negotiable. Right? This is not a final conversation. There are things that you can do if you want to have a, quote, final conversation. Those are typically referred to as performance improvement plans. And there are times to use them and times not to. Again consult with your employment lawyer if you want to use them. But generally speaking, that’s kind of like the final warning. And that would be where you go over things such as here’s what is not working well in your employment.

 

Allison Williams: [00:11:13] Here are the action steps you are required to take in order to satisfy this particular deficit. But that is not at the termination stage. At the termination stage, those conversations should have already been had any type of shortcoming should already have been documented at the termination stage. You are letting the person know that the decision has been made. Now, the other thing that is really important when we’re talking about the actual termination is that you want to put rights and responsibilities in writing. So things such as I want you to first just understand what we’re talking about, putting things in writing here. It is for a very specific purpose. And it’s that when you tell someone that you are displacing them from their current position, that oftentimes will engender feelings that you cannot possibly predict. OK, I can’t tell you the number of different emotions that I have experienced for myself, let alone for the other person. And I have had the unfortunate situation of terminating people who were very stoic and then just erupted. I’ve had someone scream and curse for an extended period of time and I literally just let them do that. Right. You have to realize that it’s not personal. When a person has the reaction, the reaction is the product of who they are as a person, what experiences they have had in their life and oftentimes how they are processing what’s going on. And so when a person is processing in a certain way, I want you to detach yourself from the idea that you caused the reaction.

 

Allison Williams: [00:12:49] Right. Some people the reaction is to take it on the chin, if you will, listen, nod their head and get up and leave other people. The reaction is very explosive, right? Different person, different reaction. You didn’t cause any of them, right? You offered the stimulus that interacted with what is already going on internally, inside the person, through the product of all the experiences that predated you, that caused them to react the way that they did. OK, but because there are different responses and because there are different reactions, you do want to put rights and responsibilities in writing and this would typically be things such as the need to return company property and when they will receive their final paycheck. If you are in a jurisdiction where you have afforded health insurance, your state may require that you give them notice as to how they can continue coverage. Now, most of us that we’re in a small law firm space are not covered by COBRA, which would be the continuation of health insurance benefits for companies of a certain size. But most states have some type of legislation that governs the continuation of coverage. So you may have to give forms in that regard.

 

Allison Williams: [00:14:02] You want to let them know about unemployment. And typically, if you are not going to contest unemployment, I like to actually put that in writing that you’re not going to contest unemployment because that is often seen as a, I don’t want to say a gift. A gift is probably a bit strong, but it’s seen as a positive, right? If you are, if this is a, it’s not working out, but my goal is not to hurt you. The communication of we’re going to not contest your unemployment if you choose to apply for that is a way of communicating that. Also, the issue of severance is something that we’ve talked about before. Right. So I’m going to talk about that a little bit more in our next area. But certainly anything that involves any subsequent payments in excess of simply what is due through the last paycheck needs to be put in writing. And I also like to put in language protective of clients, because even though intellectually, you know, that if a former employee of yours were to ever communicate with your clients or to ever do anything with information they gleaned about your clients through the employment relationship, you have a cause of action against them on behalf of your clients. Your clients would have a cause of action, etc. Depending on your state, there could be different causes of action. You know that. But putting in the caveat that they’re not to, they’re not to use any of your client contact information, that that information is to remain confidential, et cetera. Those sorts of things, you definitely want to put in writing as a reminder of what is required.

 

Allison Williams: [00:15:40] And I often like to put that. If there’s anything that I learn of, that has a detrimental harm to my client, we will pursue all remedies available at law. OK. Don’t put anything onerous like we’re going to come after you with the, with the will of God. Right. But you do like to let them know that you are going to protect your clients at all costs, because not only do you owe that to your clients, but it also speaks about and it gives people a little a little heads up that that’s something that you will be particularly concerned about protecting. OK. So having said that, the third and final strategy I want to talk about is the employment attorney protection. OK, there is so much that you can learn from working with an employment attorney. Now, this is not a pitch for any particular employment attorney. Shouts out to my employment attorney, Greg, if you are listening to this podcast, and for anyone in New Jersey, Greg is phenomenal. But really, I’m talking about employment attorneys in general. So most of our listeners of this podcast I know are outside of the state of New Jersey, so Greg may not be a resource for you, but there’s lots of different options out there.

 

Allison Williams: [00:16:50] And there’s so much that you learn from working with an employment attorney. Just little things like I remember at one point in time I was working with a coaching company and they had recommended to me that I include a liquidator liquidated damages clause in my employment offers. So I did. And then when I checked with my employment attorney, he was like, yeah, this is not, this is not going to fly in New Jersey. And, you know, by the time he rewrote it, I was like, let’s just take it out. It’s essentially meaningless here in New Jersey. So there’s there’s any number of things that you can pick up on. Things that you may think are instinctually good business, that are sound. There are things that you can do in red states that you can’t do in blue states. There are things that you can do in some states that have certain additional protections codified in the rules of professional conduct that you can’t in other states that don’t have those provisions. So there’s a lot that you can learn from just having a conversation with an employment attorney. And there are some things that you’re not going to know to ask about until they happen. So I remember the first time we had a lawyer who became pregnant here at the office and when the topic of of of paid time off came up, I said, OK, well, my thought is I’m going to pay for a few weeks and this is what it’s going to look like, et cetera.

 

Allison Williams: [00:18:16] And I told my office administrator, can you just stick it in like a letter or whatever and run it by Greg, my employment attorney. And Greg let me know about a whole host of different requirements in the state. And a lot of those requirements are things that are not common sense to me. Right. So knowing when you have to pay for sick time that can be aggregated to maternity leave wasn’t common sense. Knowing that the state affords unpaid time off that’s protected in excess of paid time off wasn’t common sense to me. Knowing when vacation time can be aggregated with paid time off or if that time has to be taken consecutively, or if you can take some time now and some time later. Didn’t make sense to me. Disability. What constitutes disability? How we prove it. How it constitutes a different proof requirement with pregnancy than with other forms of disability. A lot of different things there. Right. And if I had not spoken with my employment attorney and I had just kind of winged it by saying, here’s the dollars and cents I’m going to give you while you’re out, I would have been running afoul of the law even though it was not intentional. Right.

 

Allison Williams: [00:19:28] So there’s just there’s so much that comes from working with an employment lawyer. And I do want to give you some some guidance on how you should be seeking out what you need to confer with your employment attorney on. Because one of the things that was really helpful for for me as a small business owner was that I used ADP processing for our payroll and ADP would send us these large calendars or calendars and and wall posters that we could post up every day. I think it’s every six months they would send them to us, but certainly we would get them so that we would put the wage and our responsibilities up on the wall. But then ADP started sending us emails and the emails would be like little provisos, reminders of things that were applicable in our state regarding our employees. And some of them would relate to things like overtime. And I remember for the first time that I learned that a salaried paralegal is treated as a, even though you pay them a salary, it’s calculated based on hours and they’re entitled to overtime. And I remember, like, just kind of dealing with that and the conundrum, if you will, that I had with kind of the documentation aspect of it. And it was really I remember it was it was kind of an interesting conversation I had with Greg. And I won’t go into all the details because, of course, there’s attorney client privilege. But one of the things that I did share with him and I shared this publicly was that I didn’t want to have a feeling of nickeling and diming my employees.

 

Allison Williams: [00:21:06] And I said, you know, I’ve always been the kind of employer that says, you know, I treat you as a professional and I expect you to behave as such. So that to me means that if you’re a little bit late because you got stuck in traffic or because your kid was sick this morning or because you were tired and hung over from a party last night or whatever, when you get to work, you will take that time on somewhere else. So, yeah, you came in a little late today. Maybe you got some time off lunch, maybe you stop in over the weekend. It could be any number of things. Right. And I never really policed that because I always had such hard working, loyal employees. My thought was, you know, I give to you. You give to me. Right. So that for our lunch we had on Friday, because none of us were in the mood to work. I don’t count that as a time that you were off the clock, just as I would not expect you to charge me for time where you stopped into the office over the weekend to pick up something that you left and then you checked your email real quick for something from a client and decided to respond.

 

Allison Williams: [00:22:09] But Greg told me, you know, that technically is not the way that you’re supposed to be conducting yourself. And we have, we have responsibilities around that here in New Jersey. And so I started to have to do things in a certain way in order to comply with the law and to ensure that I was giving my employees everything. And someone actually noted to me after we, after I learned about this and started to implement these changes, they actually referred to me. They said to me, you know, the way it was before, you know, I would have never lost time for this. And so I said to the person, I said, you know, you’re right. And I didn’t create this policy so that I could pay you less. I created this policy because I had to because the law requires. But here’s what I can do to overcome that. Right. So there’s there’s little ways to kind of work your way back to that freedom state that we had before. But all that to say, had I not seen the ADP wage and hour commentary about paralegals and then referred that to my employment attorney, I would have never known. Right, and so one of the other things that came up that I had to deal with was, when we’re talking about termination in particular, terminating employees over 40. There are additional protections. So there’s this this law called the Older Worker Protection Act, and it requires additional notice provisions when you’re giving someone a severance.

 

Allison Williams: [00:23:45] So if you say in exchange for giving you a severance, I want a waiver of your right to sue me for any and all claims. Right. And I hated the idea of that when Greg first told me, because I was like, do I really want to say to the person, hey, in case I screwed you over some way, don’t sue me and I’ll pay you to not sue me, because doesn’t that presuppose that there’s something they ought to be looking at and that it could be construed that way? But really, it’s a it’s a common thing. It’s it’s so commonplace now that if they took it to a lawyer, a lawyer would say you must have a cause of action because your employer is offering this to you. But somebody might you never know. But ultimately, he told me about these additional protections and waiting periods and the right to have it reviewed by an attorney and all these things that, of course, I would never conceptually know about. I wouldn’t, I wouldn’t necessarily even think to ask the question. It was simply that I wanted to make sure I was being particularly generous with with a a former employee. And I gave this person a couple of months of severance and I gave this person some additional health insurance benefits.

 

Allison Williams: [00:24:52] And I remember kind of going through the process of thinking through what made sense for the severance. And I honestly just didn’t know what I didn’t know. So I knew to ask my employment attorney and he gave me a lot of things there. Another issue that I know comes up a lot with lawyers is pregnancy, and particularly because there are a lot of women law firm owner groups where women attorneys will note that as soon as they got pregnant, their employer fired them. As disturbing as that is, and we know that that’s against federal law. There are times when an underperforming employee also happens to become pregnant. And a lot of law firm owners will say this person was underperforming before and now I can’t terminate them because. And the one piece of advice I want to give you about successful terminations is you should never make a knee jerk assumption that you can’t or shouldn’t fire someone because they are a member of a protected class. It raises a concern to fire someone who is a member of a protected class. But if you perseverate on the fact that someone is in a protected class, you’re probably going to be that much less likely to hire someone who’s in a protected class, which, of course, we know would maintain discriminatory animus in employment in general. Right. So I personally never backed away from hiring blacks or women or or older people or disabled people or pregnant people because they are a member of a protected class that could trigger additional legal protections, because, frankly, people who have had disadvantages or societal disadvantages oftentimes have that much more to overcome to become attorneys in the first place.

 

Allison Williams: [00:26:39] And there’s a certain work ethic that I have gotten when I have hired moms, when I have hired black attorneys, when I have hired older attorneys, that you just… Life experience gave them that boost. Right. So I hate the idea of thinking about people as a big walking lawsuit when they come in with a protected class category. But I will say this. When you have somebody who is in a protected class category, there are things that will naturally arise, concerns that will naturally arise from the person’s work environment, that having a lawyer on tap to help talk you through ways that you can ensure that if you need to let someone go, that you can without causing additional risk, is particularly important. Right. So now that doesn’t mean that someone can still sue you, right. Anyone can sue for any reason at any time. We know this, but you’re talking about risk mitigation. And one of the things that I know in particular, when I start to perceive that a person has a victim mindset associated with anything that goes wrong in the employment relationship, that is where you don’t just want to document, but you want to document and have conversations frequently with that person.

 

Allison Williams: [00:27:53] Right. So you want to, you want to treat your employment relationship with someone with a protective veil of, I want to not just comply with the law, but I want the person to be aware of the fact that I’m doing everything that I can for them in a way that says this person was ultimately let go because they couldn’t do X, Y, Z. Not this person was let go because they’re a member of that class. Now, the way that you document the way that you are less likely to be accused of a pretextual reason for firing someone saying, yeah, yeah, it happens to be that I came in late, but Suzy came in late every day. And you didn’t get on her case. You got on my case because I’m older or you got on my case because I’m disabled or whatever it is. The ways that you ultimately protect yourself from a pretextual argument is something that you need to discuss with an employment attorney. Right, because there’s lots of different ways that things can be interpreted and there’s lots of different ways that problems can arise, that people will perceive a certain way. The one thing that I’ve always felt is very unfortunate is the fact that employment relationships are typically confidential. So if you’re disciplining someone and they feel isolated, it’s not like you can say, well, yes, I disciplined you, but Suzy over here did the same thing and I disciplined her too. Right.

 

Allison Williams: [00:29:20] You’re not going to be sharing other people’s problematic behavior as a means of trying to support whatever you’re doing with your with your current employee. So, but there are ways that you can mitigate those risks. There are a lot of different components of the law, things you can do, things you can’t do, things that you should do, things that you shouldn’t do. And having a relationship with an employment attorney is really just critically important in order to protect you and give you the level of comfort that says if I let someone go for nonperformance or underperformance or even because I decided to transition out the role or because I decided that I want to go in a different direction, that I’m not going to be creating a baked in lawsuit. Because I think a lot of lawyers have such a fear that they’re going to be at risk of being sued at any time for any reason, that we kind of walk around on eggshells and we think of people as inherent risk. Right. And there is risk in hiring people, but there is a greater risk in staying stagnant and staying where you are in your law firm. All right. Today’s episode of The Crushing Chaos with Law Firm Mentor podcast has been dedicated to the topic of successful terminations.

 

Allison Williams: [00:30:32] If you need help with making these types of decisions, again, I strongly implore you to seek out an employment attorney. But one of the things that we can help you with here at Law Firm Mentor is dealing with a lot of the mindset, stuff that will stop you from choosing to grow in the first place because you have a fear of getting sued or a fear of the ramifications of employment law in your state. So if you want help with growing your business, we’re here to help you with that. Reach out. You can always find us at our website and our scheduler is going to be in the show notes to today’s episode. I am Allison Williams, your Law Firm Mentor. Everyone have a wonderful day.

 

Allison Williams: [00:31:27] Thank you for tuning in to the Crushing Chaos with Law Firm Mentor podcast. To learn more about today’s guests and take advantage of the resources mentioned, check out our show notes. And if you own a solo or small law firm and are looking for guidance, advice or simply support on your journey to create a law firm that runs without you, join us in the Law Firm Mentor Movement free Facebook group. There, you can access our free trainings on improving collections in law firms, meeting billable hours, and join the movement of thousands of law firm owners across the country who want to crush chaos in their law firm and make more money. I’m Allison Williams, your Law Firm Mentor. Have a great day.