Brad Remillard is the founding partner at IMPACT HIRING SOLUTIONS. He has over 30 years experience assisting candidates conduct an effective and efficient job search. He is the co-author of two books on hiring and does a weekly Internet radio show dedicated to hiring. He’s here to offer his advice on getting your job search in gear.
Q. What documentation should a company have available if it chooses to fire a person in a protected class?
A. I would always recommend caution when terminating someone in a protected class.
(Editor’s note: Equal Employment Opportunity law bars discrimination against certain groups or protected classes based on sex, race, religion, color or national origin; people over 40, and people with physical or mental handicaps.)
Make sure you have the correct documentation and have followed the numerous laws in this area. This is an area that can come back a bite you, so it shouldn’t be taken lightly. I asked Laura Fleming, a labor attorney and partner with the Newport Beach law firm Stradling Yocca Carlson & Rauth for her advice.
Employers are free to fire workers who happen to be in a protected class. However, the reason for termination cannot be “because of” the protected class. To show that you did not fire someone “because of” their protected class, you need evidence of a legitimate, business reason for the termination. The amount and type of documentation will vary depending on the circumstances. Here are a couple specific examples:
Let’s say you want to fire the employee for general poor performance, like inadequate productivity. You should have documentation of progressive discipline, including written warnings (signed by the employee) and perhaps also a performance improvement plan. You should have a list of productivity goals and results for the employee as compared with others in his/her position. You should also have performance evaluations that reference poor productivity. (It is difficult to justify terminating someone for poor performance when the performance evaluations all say “satisfactory.”) Again, at the time of termination, the employee would be told that he/she was being terminated for poor performance.
Or, let’s say you want to lay off an employee. You should document the business reasons for the reorganization (for example, financial reports showing a decrease in business volume related to a particular division or a decrease in need for a particular administrative support function). You should also have documentation that explains why other employees were not selected for layoff. This could include a comparison of performance evaluations demonstrating that the employee chosen to remain had a broader skill set, or was a better team player. For a larger layoff, this could also include numerical rankings of employees across several performance categories.
Employers can still be sued, regardless of whether the termination was properly documented. However, one way to reduce the risk of a lawsuit is to offer severance in exchange for a release. The employee receives additional compensation, and the employer receives a promise not to sue. In this way, severance can be a cost-effective form of “insurance” against a lawsuit.
Q. We are a small growing company. How do we compete for talent with larger companies since we can’t pay as much as they do?
A. In my search practice, I have placed people in small and large companies. The main issue is rarely compensation. In fact, if that is the primary issue then you will never win, as there is always some company willing to pay more. That goes for large companies too.
First off, should you even be competing against large companies for talent? Their culture, resources, support, systems and budgets often will not align with a small company. That isn’t to say never, only often. So you might be searching in the wrong pool for candidates.
Secondly, especially in this economy, money isn’t everything. Candidates today are seeking much more than just compensation. Stability, life-work balance and a company where they feel they can make an impact are important. Smaller companies tend be quicker, have less bureaucracy, and can be a fun place to work, where everyone knows everyone and there’s an exciting vision for the future. It has been my experience that smaller companies don’t think about these things when hiring. They go right to compensation, when for many these have a value or trade-off to compensation. Granted, there is a fair compensation for every position and person, but once that level is met, other things come into play.
Finally, don’t ignore the seasoned workforce. I constantly hear about how age discrimination is happening. There are many of these people who would be outstanding employees. The seasoned workforce is underutilized in today’s market by many smaller companies.
Have a question about your job search? Send questions to moneymatters@ocregister.com; reference “job expert” in the subject line.
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