Alice Doesn’t Work Here Any More

A software company (“Client”) had to dismiss one of its developers (let’s call her “Alice”). The problem was Alice’s incompetence.

But there was a complication: Alice was pregnant. Adding to Client’s frustration, Alice, without permission or advance notice, was taking more time off than she was entitled to. Client wanted to be rid of Alice but did not want to be charged with discrimination based on sex or pregnancy.

Focusing on the Issue

I worked with Client’s CEO and Alice’s manager. We agreed right away to ignore the unauthorized time off. The amount of money at stake was relatively small, and we were concerned that raising time off as an issue could entangle us in Alice’s pregnancy-related medical needs.

So we focused on the quality of her work. Alice’s manager had direct evidence of her poor performance plus input from a senior co-worker who shared projects with Alice. (The manager believed that Alice had lied on her resume, but we ignored that issue, too, because it would be difficult to prove and was not necessary to justify termination.)

The manager prepared a memo summarizing Alice’s limited strengths and numerous shortcomings. He also laid out a written plan for the coming month, during which Alice would be given assignments that focused on the various areas of required competence. The manager would evaluate Alice’s performance during that month and would be available to provide guidance.

Discussing the Problem

Then he met with Alice. The meeting went well. Alice agreed that her performance was not adequate, and she appreciated the opportunity to show that she could do the work. She understood that unless there was sufficient improvement, her employment would be terminated. The month passed, but Alice’s performance did not improve.

The manager held a termination meeting with Alice. This meeting, too, went well – Alice was not surprised. The manager gave Alice a termination letter and a check, explaining that Client was paying Alice two weeks of wages in addition to the wages to which she was entitled as of the termination date (an amount that Client voluntarily chose to pay and for which Client did not demand a signed release). Alice left with the letter and the check.

Thirty minutes later, Alice’s husband telephoned. He irately told the receptionist (!) that because Alice was pregnant, Client could not fire her, so she intended to sue.

Reassuring the Client

The CEO called me right away. I assured him that Alice’s husband probably was not acting on the advice of legal counsel, because (a) he would not have received advice that quickly, and (b) if Alice were represented by counsel, Client would have been contacted by counsel rather than Alice’s husband.

This story provides some helpful suggestions for any company that may need to terminate a poorly performing employee:

• Focus on essential performance issues rather than extraneous matters.
• Document the employee’s weaknesses with specific examples and clearly-stated evaluation criteria.
• Prepare a written improvement plan, also with clearly-stated criteria.
• Meet with the employee to discuss performance problems and the improvement plan.
• Assign projects in accordance with the improvement plan.
• Provide timely, ongoing assessments so the employee will know whether progress is being made.
• At the end of the improvement period, meet briefly with the employee either to offer congratulations or to explain termination details.

For insights about the termination process, check out Termination Tips.

Dana H. Shultz, Attorney at Law  +1 510 547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.