Cross Posted at Legal Schnauzer
In our previous segment, we noted a Birmingham law firm's document with this classic title--"Ten Rules on How to Fire an Employee--And Not Get Sued."
Now we are going to apply those rules to Infinity Property and Casualty and the University of Alabama at Birmingham (UAB), the organizations that "fired" Mrs. Schnauzer and me. Actually, we probably were not fired in the traditional sense of the world. We likely were the victims of "career hits," authorized by powerful forces from outside our workplaces because we've dared, on this blog, to speak the truth about legal and political corruption in Alabama. Still, it should be fun to grade these two organizations and see how they fare when it comes to "enlightened" management.
We encourage you to follow along with us and apply grades to your own employer. Let us know if you work for an outfit that actually finishes with a passing grade. You can check out the full "Ten Rules" at the end of this post.
First, we should note that the headline in our featured document is poorly stated. It should read, "Ten Rules On How to Fire An Employee--And Not Get Successfully Sued." In our society, there is nothing to keep someone from suing you--for getting out of bed in the morning or wearing the wrong color of socks. I should know; my criminally inclined neighbor sued me for picking up trash out of my own yard. (As Dave Barry would say, I'm not making this up!)
The issue is not preventing a lawsuit--because you can't do that in the US of A; it's preventing a successful lawsuit.
Now, let's check out our rules and see how Infinity and UAB fare:
No. 1--Document the employee's personnel file
Infinity, you might recall, fired Mrs. Schnauzer for being "tardy" after they had told her to change her start time each day from 9 to 9:30 a.m. in order to assist with the company's large customer base in California. When she did as she was told, and started arriving at work about 9:20 every day, they let it go on for about three months--never saying a word that anything was wrong. Then, all of a sudden, they claimed she had three months' worth of tardies and fired her. Infinity did prepare a written warning a few days before Mrs. Schnauzer's termination. But it was based on false information and did not confirm to the company's own policies--which require it to give oral warning after three tardies, written warning after six tardies, etc. Mrs. Schnauzer never received any oral warnings about tardies--and that's because she wasn't tardy, and the company's own actions show that.
UAB essentially made no efforts to document its claims that I was using work resources to write my personal blog. I never received any warnings regarding such activities. UAB policy requires progressive discipline--oral warning after a first offense, written warning after second, possible termination after a third. I never received any warning, under university policy, for any offense--and that's because I hadn't committed an offense. UAB's own actions indicate that. When asked during my grievance hearing to provide documentation to support her decision to fire me, my supervisor, Pam Powell, repeatedly said she didn't have any. Asked to provide documentation of any warnings she had issued, Powell said she didn't have any.
Grades: Infinity, F; UAB, F
No. 2--Employers should be consistent in discharging employees
At Infinity, Mrs. Schnauzer, who was in her late 40s, was put on a strict time clock. Several coworkers, who were in their 20s, worked on flex time. In other words, it was essentially impossible for a younger employee to be tardy. Mrs. Schnauzer was accused of being tardy even when she showed up 10 minutes prior to her scheduled start time.
At UAB, I was 51 years old when I was essentially fired for writing a blog--on my own time, on matters of public concern--that someone in the power structure didn't like. A coworker who was about 25 at the time actually was writing his blog and other political content on his work computer and did not get fired.
Grades: Infinity, F; UAB F
No. 3--If possible, employers should discharge employees during their introductory or probationary period
Mrs. Schnauzer had been an Infinity employee for about three years when she got fired.
I had been a UAB employee for 19 years when I got fired.
You might say both employers missed the "probationary boat" by just a little bit. (By the way, don't you love the sheer nastiness of this rule?)
Grades: Infinity, F; UAB, F
No. 4--Inform the employee of the true reason he is being let go
Please excuse us, but Mrs. Schnauzer and I burst out laughing when we read this one.
At Infinity, imagine if they had made this statement: "Mrs. Schnauzer, we're firing you because you and your husband filed a lawsuit against an unethical debt collector, and one of our favorite law firms represents the debt collector, and you aren't caving in to threats from the law firm, so . . . well, that's why we're firing you. Hope you don't mind. And oh, by the way, we don't like your husband's blog either."
At UAB, imagine if they had made this statement: "Schnauzer, you have really ticked off Governor Riley and his conservative buddies with that infernal blog of yours. What makes you think you can tell the truth about corrupt judges, lawyers, and politicians in this state? The governor's friends want you gone, and they are used to getting their way, so . . . well, that's why we are firing you. Good luck in your future endeavors during the never-ending George W. Bush recession."
Did those conversations ever take place? Nope.
Grades: Infinity, F; UAB, F
No. 5--Employers should hold supervisors accountable for how they supervise
Again, we broke out laughing when we read this one.
Greg Kees, Mrs. Schnauzer's supervisor at Infinity, told her in front of about 12 coworkers that she was to change her start time to 9:30. Kees, however, failed to make that change in the company's electronic timekeeping system, and that's why Mrs. Schnauzer showed up as tardy for three months. My wife, in essence, got fired because of her supervisor's incompetence. If he did it intentionally at the company's direction, and we suspect that's the case, she got fired for reasons that are utterly depraved and malicious.
According to word from some of my former coworkers, my UAB supervisor ultimately got more or less forced to retire. Did my situation have anything to do with that? I don't know, but we'll give UAB a slight benefit of the doubt.
Grades: Infinity, F; UAB, D-
No. 6-- Employers should consider offering severance pay to discharged employees in
exchange for the employees' complete release of all potential claims against the company
This was not a factor in either of our cases, although we certainly are prepared for both employers to try to cheat us should our legal cases reach a settlement stage.
No. 7--Employers should establish an internal procedure for employees to challenge
terminations that they perceive as unfair
According to its employee handbook, Infinity has a grievance process. But in the real world, we found, it is worthless. Mrs. Schnauzer's grievance process consisted of her writing an e-mail to Pam Jenkins in human resources and saying she was wrongfully terminated, based on false information and administrative screw ups. Mrs. Schnauzer said she had been told to work a 9:30 schedule and was not tardy. She also said her supervisor had wrongfully accused her of regularly taking unscheduled absences on Mondays; those were scheduled and approved vacation days. Ms. Jenkins admitted that the accusations about Monday absences were false and said she would note that in Mrs. Schnauzer's record. Otherwise, Ms. Jenkins claimed, the company had followed policy--and Mrs. Schnauzer was still fired.
UAB actually comes close to receiving a decent grade for its grievance process. I went through it, and the committee came to the correct conclusion--that I should not have been terminated. University policy, however, allows the HR director and the president to ignore the committee's recommendation--and that's what they did in my case, upholding my termination. This loophole makes UAB's policy worthless--at least when it has a corrupt president and HR director, as it did when I went through the process.
Grades: Infinity, F; UAB, D-
No. 8--If an employee does sue over his or her discharge, the employer should not be too
quick to settle the lawsuit
Don't you just love this one? The message, essentially, is this: No matter how badly you screwed someone, no matter how wickedly you violated federal law, drag the process out as long as possible.
This speaks volumes about how managers, and their lawyers, think. Here is the exact advice for managers: "Force the employee to expend time, effort and money to pursue the lawsuit before settling it."
By saying the case should be settled, the lawyers essentially are admitting that management has wronged someone. But they encourage employers to toy with injured people anyway.
We haven't reached this stage yet. But to put it bluntly, these are the words of evil individuals.
No. 9--Prior to discharging an employee, make sure that he or she has not recently exercised
any "protected rights"
Again, we burst out laughing at this one. (Had no idea this exercise would be so funny.)
This probably does not apply to Mrs. Schnauzer's situation at Infinity. She was blindsided to such extent that she was pretty much assassinated on the job--before she knew what had hit her.
It definitely applies to my situation at UAB. As I've reported previously, my supervisor conducted a harassment campaign against me for about the last six months I was on the job. It got so bad that I finally complained to her and her superior about age discrimination, and I filed a formal grievance in HR. Under university policy, an employee is to use the grievance process without fear of reprisal. Under federal law, an employee is to complain about protected rights without fear of retaliation. Did UAB observe those rights, under the law? Not exactly. I was promptly placed on administrative leave and then fired.
We also have shown that the real reason I was fired had to do with the content of this blog, specifically my reporting on the Don Siegelman prosecution. Anita Bonasera, UAB's director of employee relations, admitted as much in a tape-recorded phone conversation I had with her. (By the way, don't you just love that title, "Director of Employee Relations"? Sounds like Bonasera actually cares about employees . . . gag, hack, snort.) You can check out the audio here:
Grades: Infinity, I; UAB, F
No. 10--At the time an employee is discharged, reach an agreement with the employee about
how the employer should respond to requests for a reference regarding the employee
This was never a factor in either of our cases. I suspect that's because when a manager knows he is cheating an employee, these issues never enter his mind.
Can you imagine the Infinity or UAB managers making this statement: "We know we are firing you for blatantly unlawful reasons, but hey, we'll give you good references in the future. That should make things about even, don't you think?"
What kind of final grades do Infinity and UAB receive? They both fail--utterly, totally, and miserably.
But they still have a chance to improve their grades. When it comes to the rule that says "drag the process out, even when you know you've screwed the employee," we feel quite certain that they will score quite high.