Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Fire Bad Employees

Should I Fire Bad Employees or Let Them Quit?

Gary Vaynerchuk is a wildly successful and popular investor, serial entrepreneur, CEO, author, and, well, personality. One of his recent business mantras gives experienced employment lawyers like me pause. Vaynerchuk, or “Gary Vee” as he’s widely known, argues that companies should fire bad employees rather than letting them quit on their own. But is that always the prudent course of action?

In Favor of Firing

As I understand it, Gary Vee emphasizes that employers need to send the right message by firing bad employees before they leave on their own. This shows that the company won’t tolerate inappropriate behavior.

Vaynerchuk consistently promotes a positive workplace atmosphere and collegiality as a hallmark of good business. That’s a hard position to attack. But those aren’t the only aspects of good businesses. They also must offer viable products/services and sell them to customers. Sometimes employees who produce in these areas don’t play well in the sandbox. Vaynerchuk advocates extracting workplace cancers even if they’re top rainmakers or otherwise seem to contribute disproportionately to the firm’s financial success. To him, these positives never justify being a jerk.

So, the argument continues, you have to fire the jerk before the jerk fires you. That’s how you maintain credibility, particularly in the mission to promote a positive and healthy work environment. If you let the jerks leave on their own terms, they win and you lose. They leave behind the impression that the company was willing to tolerate their misbehavior for financial gains. This begets more jerks rather than pleasant co-workers striving to achieve the company’s collective goals in a more or less friendly workplace.

Why You Might Let Them Quit

Many business owners find wisdom in Gary Vee’s “fire them before they fire you” advice. Indeed, it makes a lot of sense from a morale perspective. And workplace morale is a valuable asset.

Why do many employers think it’s a better idea to wait out a bad employee until they leave on their own? Some probably just hate confrontation or at least the unpleasant experience of firing someone. Vaynerchuk seems to empathize with that reality, encouraging employers to work to overcome their reluctance and take difficult actions as soon a necessary. “Hire fast, and fire fast” he preaches, while acknowledging the latter doesn’t come naturally to him either.

But there’s an even deeper counterargument to consider. It lies in employment law. Yes, leave it to lawyers to try to ruin a good thing.

Here are several legal risks employers try to avoid by not firing problematic workers:

Discrimination Claims

What could happen when you fire someone? Well, they could accept it and move on. Or they could become contentious and potentially litigious.

Most people don’t want to be sued. This goes for most business owners and managers as well. And there are just so many laws out there protecting employees these days, including extensive anti-discrimination statutes.

This can filter into the equation when you start to consider how to move on from an employee who isn’t working out. Especially if the employee in question differs from others similarly situated in one or more protected characteristics. Even if you know the employee has to go for legitimate reasons, you might pause to fire the oldest person in a department. Or the only female supervisor. Or someone in a racial minority.

Unemployment

Even when there’s no particular concern of a discrimination claim, some employers would rather an employee quit so they can’t obtain unemployment benefits. The unemployment laws vary by state, but there’s usually some additional cost to employers whose former employees receive unemployment. And employees who quit often aren’t eligible.

Employers can sometimes defeat worker unemployment claims by proving that the employee deserved to be fired. But that’s a risk that some companies would prefer to avoid. So they might prefer to let the employee walk away rather than show them the door.

Severance Pay

Some employees have employment contracts or are eligible for company policies that provide severance pay under certain conditions. Employees are usually more likely to be eligible if they have been let go involuntarily. Or they might receive more severance pay if they are fired (especially, if without “cause”) rather than quitting.

In the United States, at least, this usually depends only on specific company policies and contracts rather than external laws. But there can definitely be a significant financial impact in some cases.

Striking a Balance

The legal risks are real. Some employees might sue after you let them go. And even the prospect that they might can keep you awake at night. Let’s face it, even one employment discrimination suit can prove costly, both in time and potential liability.

But, remember, we’re talking about firing bad employees. Either they’ve treated others disrespectfully, performed poorly, or otherwise failed to live up your expectations. Regardless of race, age, gender, and other factors, you should have defensible grounds to let them go. If you’re not sure about that, then speak with your employment lawyer.

Still, I do worry that the Gary Vee philosophy isn’t problem-free. Some employers could overreact and fire someone too soon without considering all relevant factors.

Perhaps the most important consideration is how have you treated other employees who’ve underwhelmed you? Have you let some slide, but now want to swing a quick axe? Saying “Gary Vee told me to!” won’t necessarily work if you’re now firing an older employee after letting a younger get away with more in the past.

Keep in mind that allowing a bad employee to hang around too long can also lead to legal problems. Harassers may not stop harassing. Aggressive employees could become violent. Sloppy employees could become too sloppy or even dishonest. Sometimes you even have to balance your legal risks. Who’s more likely to sue and what will it cost? HR, like other aspects of your business, isn’t always easy, I’m afraid.

Final Thoughts

You should do what’s right for your business. That includes complying with legal obligations. But beyond that you have options. Generally, I agree, bad employees need to go. But one employer’s nightmare could still be another employer’s treasure . . . perhaps.

 

For more, read 5 Tips for Firing Problem Employees

Employee's Computer

Preserving a Former Employee’s Computer Protects Your Business

Many companies don’t think about how important a departing employee’s computer could be. Well, they may recognize the computer as being valuable itself. That is, as equipment to hand over to another employee. But the information on the computer could be worth even more. Especially if the employee causes trouble or otherwise ends up in a dispute with the company.

Which Employees?

Yes, there are still many jobs that don’t directly involve the use of computers. But even some of those employees have email access. Or they might have the ability to log in to a computer station at work for limited purposes. You would at least want to tie down their email accounts and log-ins.

Other employees rely heavily on computers in their work. Some people have greater access to indispensable company data. And different employees have varying capacity to harm the company electronically or otherwise, such as through future competition.

You probably don’t need to preserve every aspect of every employee’s computer when they leave. But you should consider which positions and which employees are vital enough to warrant these measures and to what degree.

Recovering the Computer Equipment

If the employee is leaving with notice, you have time to work out a plan. You can get everything back in an orderly manner. When you’re letting someone go involuntarily without notice, however, you have to be ready to act fast.

Many employees have a laptop that they take home with them, or maybe a tablet device or company smartphone. Some, of course, have a physical desktop computer. When you bring these employees into a termination meeting you want someone else in the organization to be cutting them off from their access. They may still have a smartphone in their pocket at the moment, so you don’t want them to reach in their pocket and frantically forward company information off to a personal account. So get that access cut off quickly.

The next step then is during the meeting you want to start the process of getting the property back from them. If they do have a company phone in their pocket, they can be expected to hand it over to you immediately because it’s the company’s property. There may be issues that need to be worked out, like who gets to keep the phone number. And they might have personal files on it that they need. But you can work those matters out later. You’re not going to be unreasonable about it, but you have to secure company property first.

Other equipment, like a laptop, might be at home. You’ll have to make arrangements to get that as soon as possible.

Preserving Computer Evidence

When you can’t get equipment before the employee walks out the door, cut off any remote access you can. But it is still possible they could do something between the time they know they’ve been fired and the time you get the information or hardware back. So one thing you might want to consider is copying whatever they do return. This could mean copying the files on their desktop that’s already just still sitting at the office. It could mean copying the hard drive of their laptop that they were using, etc. This approach might be sufficient where there’s not much risk of a dispute down the road.

However, if the stakes are higher, you would ideally get a forensic image made of the hard drive, for example. That means having a qualified vendor copy everything, including meta-data and other electronic minutiae all the way back into the background details of the device (before you access anything). Then if there was a reason that someone needed to, an expert could go in and find out exactly what the user–the now-former employee–had done on the devices.

[You can find more on the technical details of forensic imaging here.]

This precaution could become especially important if there’s any risk of a trade secret theft or breach of a confidentiality agreement or something like that. There’s the possibility that this employee was already planning to go work for a competitor. Forensic imaging comes at some cost and hassle. But it can prove invaluable to make that copy, which you can then save in reserve for optimal evidentiary purposes down the road.

You might also need the information to defend your company against lawsuits by the former employee.

Reviewing the Former Employee’s Computer

You may need to go through the former employee’s computer, but in many cases, you shouldn’t go through the only copy, because then you will upset the evidentiary value by changing the metadata, etc. But certainly, once you get all of this information back and preserve whatever you need to preserve, you probably will want to go in and at least look around and see what they’ve been doing. You should make sure they didn’t do anything untoward at least based on your initial review. And, more practically, you may need some of their files for projects they were working on and otherwise to facilitate the transition going forward.

Have the Right People Involved

When dealing with a departing employee’s computer equipment, make sure the necessary personnel are on the same page. This often involves coordination between supervisors, human resources, IT, and legal. The last category becomes even more important if there is an expectation of future litigation or circumstances that could produce legal disputes. Some companies have appropriate in-house resources in each of these areas, but others will need to bring in trusted third-parties to cover all these bases.

 

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Interactive Process ADA

Interactive Process for Accommodating New York Employees with Disabilities

When employees request disability accommodations, New York employers must engage them in an “interactive process”. The goal is to identify the limitations resulting from the disability and potential accommodations that could overcome those limitations. Both employees and employers have obligations in the accommodation process.

Employee Request for Accommodation

Employers must engage in an interactive process with employees who request accommodation. The employee request is some indication of the need for adjustments related to the employee’s own medical condition.

Under the federal Americans with Disabilities Act and the New York Human Rights Law, employers are only obligated to accommodate an employee’s medical condition. These laws do not require accommodations of a family member’s medical condition, Unlike the FMLA or the New York Paid Family Leave law requirements, these reasonable accommodation protections only apply to an employee with a disability.

Indirect “Requests”

It is not absolutely necessary in every case that the employee actually verbalize or request accommodation. First, if a family member contacts the employer and provides enough information about the employee’s medical condition and need for some accommodation, then you couldn’t require the employee to personally ask for it him or herself. Likewise, if the need for accommodation is abundantly clear, the employer can’t necessarily wait for the employee to ask. For example, an employee in a wheelchair need not specifically state that he can’t climb up stairs.

Insufficient Requests

On the other hand, there are situations where the employee might ask for a change in the workplace but not make it clear that it’s related to a medical condition. Then, if the employer doesn’t have other independent knowledge of a medical condition, that request wouldn’t necessarily trigger any obligation to engage in an interactive process for accommodation under the disability discrimination laws.

For example, an employee says that they need another screen or they want a larger monitor for their computer at work. That in and of itself is not obviously a disability accommodation request. Unless the employer knows that there is some vision or other related condition, it’s plausible that somebody might just happen to prefer a larger monitor but not actually need one for a medical reason. But if the company already knows that the person is visually impaired when they ask for a larger monitor, then this would qualify as a request for accommodation, and the interactive process should begin.

Engaging in the Interactive Process

“Interactive process” is a phrase that comes out of the federal regulations interpreting the ADA. The EEOC’s regulations specifically refer to it as an “informal” process. This doesn’t mean informal in the sense of a casual conversation in the hallway. Really, it should be relatively formal as far as employee relations matters go. It’s only informal in the sense that the interactive process doesn’t have to have a lot of documentation back and forth; doesn’t directly involve outside agencies; nothing has to be filed; and under the ADA the company is not obligated to put in writing–for example, here are the accommodations we think you should have, then employee has a certain amount of time to object or something like that. So, in that sense, “informal.” But it doesn’t mean that it’s not taken seriously.

In some situations, it’s pretty easy to have the “interactive process”. If an employee says, “I need a larger monitor”. The company says, “How much larger do you need”? The employee might suggest a 60-inch screen, but the company says, “How about we give you 30 inches”? If the employee says, “Okay. Yeah, that’s fine. I should be able to see what I need there,” then it’s done. The monitor is provided, and everyone goes forward. Technically, that’s an interactive process.

Of course, in some cases, the company will need more information from the employee to evaluate possible accommodations. This might include something from their doctors as to why they need an accommodation what the accommodation might need to look like.

Obtaining Medical Information

Unless the medical condition and need for accommodation are obvious, employers can require employees to provide information about their disability. There are relatively few disputed cases where it’s so obvious that you couldn’t ask for any medical documentation. If it is that obvious, you’re probably either accommodating or able to make the analysis without medical information. The important question is more about the scope of the medical information when you choose to ask for it. Employers should not go beyond the possible need for accommodation. So you can’t expect a complete medical history on an employee just because they say they have carpal tunnel and need some accommodation for typing.

HIPAA Compliance

Employers can ask an employee to sign a HIPAA authorization so that the company can get the information directly from the medical providers. Or you can ask the employee to get the information from the doctor and then hand it over to human resources. In that scenario, the doctor doesn’t technically need a release, and the employer doesn’t need one to get the medical records.

Employers must maintain the information confidentially once they get it. But within the organization you can share the information on a need-to-know basis to conduct the interactive process and make accommodations.

Using Job Descriptions

It’s usually a good idea to make sure the doctor has a job description that accurately explains what the employee is expected to do. The doctor should reference the job description in giving feedback on the need for accommodations.

Second-Guessing the Employee’s Doctor

Employers don’t have to accept the doctor’s opinion, restrictions, or suggestions in all cases. You would want to have a good reason for disagreeing with what the doctor says. But if you believe and have some basis for the conclusion that the doctor’s recommendation is ridiculous, then you can act on that. You might even want to get a second opinion in some cases. That’s possible as part of the interactive process as long as you’re being reasonable and not throwing unrealistic obstacles in the way of an employee getting an accommodation.

Interactive Process Is a Two-Way Street

Always remember that the interactive is something that both the employee and the employer must participate in. So, if the employer tries to get information from the employee and the employee won’t provide it, then that will ultimately reduce the company’s obligation to provide the accommodation in some ways.

Likewise, however, if the employee asked for an accommodation, and the employer just flat-out refused to consider it or engage in any sort of interactive process, that is going to hurt the company in an employment discrimination case alleging failure to accommodate. Even if the company probably wouldn’t have been able to accommodate this employee, it’s going to be a big evidentiary problem that they didn’t even try by interacting with the employee.

Choosing an Effective Accommodation

As part of the interactive process, the employer must evaluate the circumstances, what accommodations are available, and whether they create an undue hardship. Then you wrap the process up by advising the employee of the decision either to allow the requested accommodation, pursue an alternative, accommodation, or deny the request altogether. Other outcomes include a finding that the employee doesn’t actually need an accommodation to perform the essential functions of the job. Or it might be that the employee no longer needs to perform a particular job function because it’s not essential.

There are cases where an employee receives an accommodation, but it doesn’t seem to work. Then the interactive process could recommence. Plus, any individual employee could have multiple disabilities that need to be accommodated in different ways. Then interactive processes could be going on simultaneously along multiple paths for different medical conditions.

The ultimate goals of the interactive are to understand the employee’s medical limitations, determine the possible accommodations to evaluate effectiveness and feasibility of accommodations, choose among available alternatives, and ideally reach agreement with the employee on the accommodations.

Employer’s Choice Among Alternatives

Employees are not legally entitled to the exact accommodation that they request. If there are alternative accommodations that would also enable the employee to perform the essential functions of their job, the company has the right to determine which combinations would be effective. The employer can choose any accommodation–whether because it would be cheaper or otherwise less burdensome on the company–as long as it’s still effective. That is, as long as the employee can perform the job and does not suffer medical consequences as a result.

You would ideally like the employee to agree and acknowledge that they accept the accommodation that is being afforded. But they don’t have to. And the employer can still go forward and say this is what we’re going to do. Most employers won’t want to get to the pure “take-it-or-leave-it” point. It is better to try to work it out and get the employee’s consent. But, ultimately, it’s the employer’s choice.

Additional New York City Requirements

Cooperative Dialogue

The New York City Human Rights Law was amended effective October 2018 specifically regarding the reasonable accommodation issue. The amendment added the concept of a “cooperative dialogue” for employees working in New York City.

Within NYC, the employer and employee now must engage in good faith in a written or oral dialogue concerning:

  • the employee’s accommodation needs;
  • potential accommodations that may address their accommodation needs, including alternatives to a requested accommodation; and
  • the difficulties that such potential accommodations may pose for the employer.

This is essentially the interactive process, but probably now constitutes a heightened requirement that the employer actually address each of these factors that the ADA and New York State Human Rights Law don’t specifically identify.

Written Determination

Perhaps even more tangible, the NYC Human Rights Law now requires that employers provide employees who have requested accommodations with written final determinations identifying any accommodation granted or denied. (To be clear, this only applies to employees who work in New York City.)

This all basically means that if you’re an employer with an employee in New York City who asks for a disability accommodation: First, you must entertain a cooperative dialogue with them. Then you must provide a summary report that says, in essence, these are the accommodations that we considered and these are the ones that we are providing. Neither the ADA nor the New York State Human Rights Law requires a written determination. But New York City now does. Failing to provide the written determination violates the NYC Human Rights Law as a form of employment discrimination.

Is This All We Need To Know About Accommodating Disabilities?

Probably not. Unfortunately, employee medical issues can be complex challenges for employers. The ADA and state and local disability discrimination laws are not even the only legal parameters at play in many of these situations. But knowing when you need to engage in the interactive process and roughly how that works is a major step in the right direction.

If you want to learn more, watch our related webinar: Accommodating NY Employees with Disabilities.

And here are some additional articles discussing employee disability issues:

What Is a Disability Under the ADA? 

Reasonable Accommodations of Disability in Employment

Is Time Off a Reasonable Accommodation?

Mental Health Leave Under the ADA

The U.S. Equal Employment Opportunity Commission also offers relevant guidance here.