The severance agreement will not necessarily protect you.

1. How to Terminate an Employee
Without Legal Consequences

2. Injustices that
the law will
rectify are
dwarfed by the
injustices it will
not. We
generally
consider non-actionable
injustices to be
frivolous
claims. The
parties’
“interests”
almost always
include non-actionable
injustices
which
mediation can
address.
Actionable
injustices
World of
Injustice

3. Employment Injustices
the Law Will Remedy
• Employment contract
– Specific duration
– Requiring cause for dismissal
• Termination, transfer, etc. that infringes on
specific public policy interest (exception to
at will doctrine)
– Refusing to act improperly – refuse to
engage in unlawful conspiracy
– Exercising a right (filing workers’ comp
claim)
– Whistle blowing (complaining about
misdeeds)
– Performing public duties (jury duty)

4. Improperly Motivated
Terminations, Demotions,
Reassignments, Etc.
• Support for a union
(NLRA)
• Race, color, religion,
sex or national origin
(Federal Civil Rights
Act)
• Age; veteran status,
disability, pregnancy,
indebtedness (federal
& state laws)
• Sexual or gender
preference (California)
• Quid pro quo or hostile
environment sexual
harassment

5. • median awards
– $151,800 men
– $75,000 for women (’88-’95)
• ’88 - cost of litigating 1 case averaged
$80K
• ’92 studies -- general reluctance to
terminate poorly performing employee
for fear of suit
• Research in accident
cases shows the further litigation
proceeds, the more distasteful the
experience for plaintiffs )
• plaintiffs frequently prevail
– 64 percent of the time when the
plaintiffs are executives; and,
– 42 percent of the time when they are
general laborers

6. • distributive justice, or
the perceived fairness
of outcomes
• procedural justice, or
the perceived fairness
of the procedures by
which outcomes are
determined
• interactional justice,
the perceived fairness
of the nuances of
interpersonal
treatment.

7. • negative experiences with
supervisors;
• Belief that processes used by the
supervisor are unfair.
• violations of procedural justice
• perceived violations of equity and
distributive justice
• perceived violations of
interactional justice
• survivors' attitudes toward their
organization are strongly
associated with their beliefs about
the fairness of the manner in which
their companies laid off other
workers

8. • unfair treatment carries a message of social exclusion,
threatening social identity
• extremely unfair treatment, carries message of rejection
• Resulting loss of self-esteem provokes vendetta effect

9. the greater hardship
associated with job loss,
the greater impact fairness
judgments have on
seeking redress

10. • Shorter notice of
impending termination
increases claiming
thoughts and actions.
– learn of dismissal when
company AmEx card is
rejected at a restaurant
– Learn of dismissal when
return to office after lunch
and find someone taking
name plate off the door
• Failure to provide
assistance in finding new
employment increases
claiming thoughts and
actions.

11. Naming,
Blaming and
Claiming
• “claiming” is a
multistage process.
– Begins with perception
that the event is
injurious.
– potential claimant
must then blame
someone other than
themselves for the
injury
– potential claimants
must possess the will,
the means, and the
know-how to pursue
their claims.

12. Though claimants'
actions may be
driven primarily by
loss, suit will not be
brought under the
contingency-fee
paradigm unless the
attorney believes
there will be a
sufficient financial
pay-off to justify the
attorney’s time and
expense.

13. • unfair, insensitive treatment at the
time of termination had twice
effect of next most potent factor
in bringing suit.
• Blame not strongly related to the
claiming process
• Some, but slight, support for
proposition that certain groups are
especially likely to sue
– Women’s, minorities’, and
union workers’ reasons lay as
much in perceptions of poor
treatment as in perceived
likelihood of success
• Best predictor of willingness to file
claims was highly educated
respondents

14. • people react to
nuances of
treatment and
style at the time
of termination
• quality of the
dismissal will
affect people’s
decision to
bring suit as
much as
termination
itself.
• fair, honest,
dignified
termination
should reduce
the temptation
to retaliate
through
litigation.

15. Employees
terminated in
most
disrespectful
fashion
• May seek to use
litigation to force
former employers
into a negative
relationship to
retrieve some of the
social identity lost
by a demeaning
dismissal
• the litigation, once
undertaken, will
likely continue until
the employee feels
some return of the
social identity they
lost in the
termination
experience

16. Non-Monetary
Offers of
Assistance
• good treatment of laid-off
or fired employees
– Give several weeks advance
warning
– provide help in finding new
employment
– Give honest accounts
– provide transitional alumni
status when possible
– provide symbols of positive
regard such as letters of
reference, departure gifts or
parties
– offer counseling to ease the
psychological shock of
employment termination
We can’t afford a golden parachute but Stanley
here is working on a nice paisley umbrella

17. Assistance with
the Financial
and Personal
Crisis of Job
Loss
• extend insurance
benefits
• offer generous
severance packages
• provide financial
planning services
• Offer ombuds programs
• Referral services
• Job re-training
resources
• Revamp personnel
policies
• Name something after
the person; retire his
employee number; give
certificate of merit, etc.

18. You Didn’t Think We’d
Ignore the Employer
Did You?
• Interests
– Fear of other claims
following this one no matter
how good the confidentiality
provisions
– Sense of being extorted
– Sense of vulnerability
– Fear of being “wrong,” i.e.,
that personnel policy or
practices & procedures not
up to par
– Management’s fears of
being blamed
– Sense of injustice
– Often paternal or maternal
attitude toward employees
& feelings of ingratitude

19. The Employer Seeks
Fairness as Much as
the Employee
• The way in which we respond to
adversity "often reflects the fact that
[our] prestige or status has been
threatened more than the fact that
[our] purchasing power has been
diminished." Miller, Disrespect and
the Experience of Injustice, Annual
Review of Psychology (2002).
• In other words, the corporate C.E.O.,
like any other kid on the block, will
retaliate when he feels he has been
disrespected.
• Conversely, research shows that
business people are reluctant to
recommend legal
• action if they believe that they and
their company have been treated
respectfully.
• Every commercial interaction, we are
told, "represents a social exchange
and every form of social behavior
represents a resource." Id.
• People's satisfaction with the
outcome of a commercial transaction
therefore "depends highly, and often
primarily, on their perception of the
fairness of those outcomes." Id.
Copyright 2006 Charles Fincher
Scribble-in-Law at LawComix.com