I Want To Fire Someone! with Tracey Levy

You want to terminate someone, but HR says "slow down"— but why? When can you terminate an employee and do it correctly? In this episode. Pandy has Tracey Levy, founder of Levy Employment Law in Westchester, NY, join her to explain the reasons and scenarios that warrant a termination. Beyond the obvious reasons, Tracey shares some thoughts on performance and employee conduct that can lead to a separation of employment and how to remain compliant while making that decision.

Transcript

Speaker: 0:22

Tracy Levy with Levy Law. Yes, I have a new presenter. And you guys, this is somebody that I probably should have had on the show a while ago, but I just met her. So cut me a break on this one because I know you're all watching for all the right reasons or you're listening. But Tracy is coming to us from Westchester, New York. Levy has been around for a while. Tracy, correct? You've been practicing for a while.

Speaker 1: 0:51

I've been practicing for 30 years. Had my own law firm, Levy Employment Law for the past 12 years now, as of this month.

Speaker: 0:59

Well, congratulations. And I have to say, what we're going to base the conversation on today is from white papers, but it's an article she wrote back in July. The 30 reasons you can terminate somebody in New York. Now, I know what you're all thinking. Pandy locked in on that and said, Oops. Okay, 30 reasons. Well, here's the deal, guys. How many of you have called me, or how many of you have been asking, "Pandy, just tell me what I can do?" And we've talked about this. It's ongoing change within employment and labor law. We get it. But Tracy, you had such an eloquent way of simplifying all of those things to think about and consider. So please tell our audience what can they do if they think they're seriously wanting to terminate somebody?

Speaker 1: 2:00

So in most of the country, except Montana, there's employment at will, which means that you can terminate someone for any reason or no reason, as long as it is not unlawful. And people get hung up on that. Well, when is it unlawful and when isn't it? The challenge is the way we've structured our laws is that while technically you can let someone go because you're not discriminating, if you don't necessarily have a good paper trail, you're going to have to prove that is the case, that you're not discriminating against them. But when you put that to the side, I actually end up sometimes with organizations that come to me to say, "well, but we didn't, it's not in our policy, it's not in our handbook anywhere that we can fire somebody for being mean to their coworkers. So aren't we stuck?" And no, you're not stuck. If the person is being mean and disruptive and it's really undermining how you can operate, then you can terminate their employment.

Speaker: 3:18

I love the fact that you started out there because I was just researching today, trying to look for that law that says the definition of "the detriment of it to the morale" is, and there isn't anything writing in. So there is a natural confusion with that.

Speaker 1: 3:35

Yes, and you know, different organizations have different values and different cultures, and not everyone aligns with what your particular organization's culture and values are. So they may be technically good at what they're doing, but they may be a disruptive force in the way they're going about it to a degree that's damaging.

Speaker: 4:01

I think I've heard the word cancer. And I hate, that sometimes comes up. Bullying obviously, we've all talked about bullies. But these are the kind of things challenge our supervisors sometimes, or we certainly challenge the audience to say, look, if you're not comfortable with being uncomfortable, and if you don't like confrontation, this may not be the position for you.

Speaker 1: 4:26

Managers need to manage. That's why that's their title. And not everone is, actually I don't know anyone who really enjoys giving critical feedback. It's hard, it's stressful, it's helpful when you do it because that's how people know that there's an issue and you're not just sort of having a bad day as a manager, but you may be having a bad day as a manager because you didn't do your job properly.

Speaker: 4:56

Well, let's see, that's holding somebody accountable, and that's even more difficult for some of those people listening. So go over your list. So we've got performance issues. We can obviously terminate for performance issues. Now we're talking about just a cultural fit. There's, you know, they're just not able to work collaboratively. What would be another reason we could terminate?

Speaker 1: 5:21

So one of the ones I put on this list that I feel like perhaps I should explain is wearing their hair and colors not naturally found in nature.

Speaker: 5:29

Oh, they've heard this one, good, keep going with that one. That's a good one.

Speaker 1: 5:33

So I had primarily advise employers, but every once in a while I get the call from an employee who says, "This happened to me and is that fair, and how can they do that?" And one was an employee who had initially been working at the reception desk at, I believe I remember correctly, some sort of a financial services institution, and had come in with hair that was apparently part purple and part green, and was promptly moved to the back space and warned that she couldn't continue coming into work that way, and didn't understand how they could have an issue with this because she was just expressing herself.

Speaker: 6:16

Yeah.

Speaker 1: 6:17

And it doesn't work that way. You know, the the organization can say we have a particular level of professionalism that we want to convey, and multicolored hair in different shades of fluorescent is not it.

Speaker: 6:34

Now you can also tie that in with tattoos and body piercing.

Speaker 1: 6:39

Yes. The same kind of thing. There are plenty of places where people are told, you know, you need to wear, cover up your tattoos to the extent you can, long sleeves or whatever, even if it's July, you may need to be wearing clothing that hides it, and you may need to remove certain body pierced areas, the the piercings while you're on the job.

Speaker: 7:07

One of the things you had on here that I kind of chuckled at is not throwing things at another employee. No, come on. They do. Do you know the people I know? You must know the people I know. Did you hear that though? She's giving you permission to say, no, children, we do not throw things in the workplace. And in my case, Tracy, I hate to say it, but in my case, he went to the community lounge or whatever, grabbed a beer can and threw it at another employee. I said, "What was beer doing in the employee lounge number one? And number two, why would you throw a beer can?" Oh, I bet she's got it on her list. You've got it on the list. Well, how about, I was a little surprised on the smoking at work. El aborate a little bit more on that one because that comes up for for health insurance reasons. Can we constrain or can we limit smoking? But walk that one through. So many locations these days, states and localities have laws that prohibit smoking in the workplace. And I recall back when New York first rolled that out, they they allowed it in private offices, but not in more public spaces, which made it particularly awkward when you were called into a more senior manager's office and you had not been exposed to smoke until you walked into that office and then you needed to fumigate when you left. Now with these, most often these laws say no, nowhere in the office or physical workspace, you can go outside, and sometimes you have to go some number of 100, 200 feet away from the building in order to smoke. If somebody sneaks a cigarette, that's a violation and you can fire them for it. And e-cigarettes are the same thing. You can restrict them as well. Wonderful. Okay, I just found another one that I really like. Because you found someone better. Now, that one could I could easily see being abused. Walk them through the proper way of applying that particular reason.

Speaker 1: 9:29

That's the one where you had the time when you most often find someone better is when the person you had is out on leave and you brought in the temp and you realize, gee, we were selling ourselves short before. This is way better performance than we were seeing. If the person is on a job protected leave, then you're not going to be able to fire them, or it's risky, I would say, at a minimum, to fire them under those when they come back because you found somebody better. You're going to have to substantiate that this is based on performance and not retaliation for taking family medical leave or paid family leave under a state law or something like that. If the person's on a personal leave, they went on, you know, a life journey for two months in the Himalayas or something like that, then they sort of have that, well, not they sort of, they do not have legal protections under those circumstances. And then the fact that you found somebody better is an opportunity. It's why on the flip side, I find people are anxious about going out on leave and signing off. Like they still want email access, they still want to check in because they're worried of what's going to happen without me.

Speaker: 10:57

Well, and on the flip side, this is a really good reminder to employers. Look, if you do have hesitations about the performance quality or or the competencies of somebody, you need to be noting that early. Don't wait till the last minute. You know whether the individual is meeting the needs of the business or not, and or if the individual is deviating from aspects of the business. So don't wait till the last minute and yeah.

Speaker 1: 11:24

Here's a no, I've heard you speak on that before, and you're a hundred percent right. There is no substitute for regular feedback and or documenting when there are issues in a timely fashion. Saving it until you've reached your end's rope, rope's end, sorry, to not going to work for you because at that point, more often than not, there may be some other factors the employee might be able to point to that suggest that this isn't necessarily based on performance because there were so many other things that you taught seemingly tolerated for so long that how could it now suddenly be that this person is not a good performer?

Speaker: 12:13

Oh, that's an excellent point. And we don't stress that enough. That is an excellent point. Thank you. Okay, my last suggestion her number 26 reason. For doing something that is contrary to the culture and values of the organization, even though it's not expressly listed in a policy. And Tracy, come on. In in the the climate that we're in right now, with the differences of opinions and whether they're political or religious or whatever, this comes up more often. And I think sometimes our leadership is afraid to talk about this. They're afraid to bring up very noticeable differences, but yet they feel very uncomfortable, and then they start treating that employee with an unconscious bias of you know, pushing them aside, instead of just parting ways. How would they handle this the best way?

Speaker 1: 13:13

It's tough, it's complicated and nuanced in some ways more so than a fair number of the other ones on the list, because it in the time we're living in right now kind of highlights some of the ways in which it gets that difficult and nuanced. Yeah. There are some states and localities where employees have legal protections for engaging in legal activities on their own time. And if that's what an employer has an issue with in one of those locations, then you can't fire somebody for that. But there are other times where if somebody, particularly a more senior hire, is going to be sort of a representative of the organization and the voice of the organization and the positions that they espouse on social media are contrary to what the organization stands for. I find this most often in mission-based organizations, not for profits that are focused on a particular mission or objective. You can't have your case leaders saying something contrary to that on the side and then say, well, but that wasn't part of work. Because when you're in one of those more senior leadership positions, sorry, you kind of carry that title around. You don't get to sign off at five o'clock and say, I'm no longer a leader of this organization. You still are, and you still are viewed in that way. And if what you're espousing is contrary to the organization, then they may have legitimate reasons to have issue with it.

Speaker: 14:50

And this is a perfect example of a moment when you need to partner with your labor law attorney. This is one of those conversations that cannot be avoided. And I cannot stress enough, you cross that line and you set an example, but you're also sending a message to the rest of your team. So please, if you have any concerns, if any of your supervisors, before it festers and they start making decisions that they shouldn't be, or they start acting in a way differently to that particular employee, sit down and have a talk with your labor law attorney. Call Tracy. Call her. It's number 26 on her list in this paper. Call her and say, "hey, heard the podcast, but let's talk about 26. Here's what's going on." Tracy, how do they get a hold of you?

Speaker 1: 15:35

So the fastest and easiest is on my website, www.levyemploymentlaw.com. And that's got my email on there and I can be reached through that. I also have a separate training business. So I'm answering questions and I'm proactively going out to train organizations on how to manage employees and be on the lookout for appropriate behaviors. So that's called Impact Workplace Training.

Speaker: 16:06

And you can do that virtual. You don't have to be in New York, guys. If you're on the West Coast, yeah.

Speaker 1: 16:14

Tracy globally you do that? So there you go.

Speaker: 16:17

Oh, that's wonderful. Listen, I'm telling you, she's here to help, just as all of our guests are. But please, you have to ask. So, again, open invitation. Tracy, thank you so much. This was so much fun. Keep writing those good papers. I'm going to start watching you a little bit closer just in case, so I can get you on. Otherwise, thank you so much for listening because that's what we're here for, here at the Human Resource. Hope to see you next week.