Michael Moore, Esq. Director McKenzie HR Solutions Printer Friendly Version

Terminating The Bad Employee

A consistent theme of inquiries about terminations is how to deal with a nasty, unreasonable employee when it is time to let her/him go. Most doctors are understandably confrontation-averse, and nothing causes the stomach to churn like the fear of a termination turning into a real donnybrook. Fortunately, there are definitely steps you can take to reduce the possibility of an unpleasant or even dangerous confrontation.

Let us begin with the observation that even the best employee can—and sometimes does—metamorphose into a vindictive, impossible burden. Sometimes, too, a really evil person can hide his/her true nature until joining the team. It happens all too often.

The truth is, though, that in almost all situations there is a good deal of advance warning. Employee behaviors tend to deteriorate over time. Seldom, if your eyes are open, should a crisis come as a surprise.

If you have a solid policy in background-checking applicants, you can often identify the “Employee from Transylvania” before she/he is on the payroll. If you have a well-constructed, affirmative employment relations policy that you conscientiously follow, your chances of ameliorating the behaviors that lead to termination are greatly increased. This can save thousands of dollars in replacing that employee.

But even in the best run offices, the worst sometimes happens, and the special dangers surrounding these situations cannot be underestimated.

Who is the Employee from Transylvania?
The answer to that question is that we know them when we interact with them. Doctors frequently consult me about the productive long-term employee whose behavior has always been challenging, but who recently has been driving away good employees and patients. The doctor has developed an increasing reliance on that employee over the years, and may often consider him/her a friend. The decision on what to do is a challenge from both an organizational and personal standpoint.

The other common scenario is the employee who has been with the practice just a few months, who was originally an okay (if not exemplary) employee, and then the doctor begins to hear through the grapevine that this person is complaining, abrasive and intimidating with colleagues and even patients.

Any doubts you might have had about how serious the situation is are put to rest when you try to counsel these employees. It is not unusual for such employees, when confronted with their behaviors and performance issues, to become immediately hostile and threatening. Whether they do so in your presence during the meeting or you hear about it shortly after from other people, inevitably things will rapidly go downhill from that point on.

I was recently consulted by a doctor who was stunned to hear, when she presented a chronically low performing assistant with a final warning, that she could do a better job “if Raymond [the general manager] was not sexually harassing me.” This bombshell created a whole new set of hazards to be navigated—which we did with this employee—but the message came out loud and clear. There was no saving that relationship.

Legal liability for a termination gone wrong
An IT company called CinCom Systems, Inc. learned the hard way how not to handle a contentious termination. Carl Uebelacker was a sales rep whose relationship with his supervisor, Veith, deteriorated (as the court described it). Ubelacker complained to Veith’s supervisor, who (as the jury found) minimized the issue and told Ubelacker he would talk with Veith.

What happened next was that Ubelacker received from Veith a “Final Warning of Dismissal,” to which he responded to with a memo challenging the performance issues set out in the warning. Veith’s superior eventually approved the termination.

One afternoon, Veith showed up at Ubelacker’s cubicle with two employees, Butler and Ream, who were carrying boxes. Veith told Ubelacker he was fired, and demanded that he immediately gather his personal belongings, put them in the boxes and be escorted from the building.

The jury found that at that point, when Ubelacker demanded to speak with the personnel office, Veith “became incensed” and stopped Ubelacker from calling on the phone by grabbing his wrist while Butler stood in the cubicle entrance, blocking his exit. This incident spanned only a few minutes.

Ubelacker sued, alleging, among other claims, false imprisonment, assault and battery, defamation and intentional infliction of emotional distress. After numerous court hearings, including a grant of judgment for CinCom that was reversed by the Court of Appeals, a trial was held on Ubelacker’s claims.

The jury awarded him $100.00 damages on each of the claims, and $90,000.00 in punitive damages. The court then awarded Ubelacker all his attorney fees and costs and assessed them against the company. On appeal, the judgment against CinCom was upheld.

The award of compensatory damages is very small in this case, so the potential hit was substantially greater than the amount CinCom actually had to pay. This single example—and there are many more—reveals the catastrophe that a termination can be. Having a solid policy can dramatically reduce the possibility of that employee leading you into a crisis, and potential legal liabilities.

Mike Moore is ranked among the best in employment law and has been named one of the top 10 lawyers in Ohio. As Director of McKenzie's HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.

Click here to hear Mike present “7 Elements of an Effective Employment Policy.” Email Mike at mike@thedentistsnetwork.net.

Interested in having Mike speak to your dental society or study club? Click here.

Forward this article to a friend