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