New supervisors don‘t understand their new power, says attorney Jeffrey Wortman, and HR Managers had better teach them about it before they make an expensive mistake.
Wortman’s comments were part of a wide-ranging discussion delivered to an enthusiastic audience at BLR’s Second Annual National Employment Law Update, held last week in Las Vegas, Nevada. (Next year’s Employment Law Update will be held October 21-23, 2009, in Las Vegas. Find out more.)
Wortman is a partner in the Los Angeles office of national employment law firm Seyfarth Shaw, LLP. Gregg Fisch, who joined him in the presentation, is an associate with the firm.
New supervisors are used to being one of the gang, Wortman says, and when they get promoted, they think they are still part of the gang. But the things they say as supervisors take on a different flavor. Two weeks before the promotion, the non-supervisor can say “Let’s have a drink after work,” and it’s just a casual invitation. Two weeks after the promotion, the newly promoted supervisor can say the same thing, and it sounds like an order—and maybe the beginning of a harassment claim.
Supervisors may not know their new powers, but subordinates always know, says Wortman.
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How to Tell If Termination Is Appropriate
Wortman continued his presentation about supervisors by sharing the six questions he always asks when he gets the call, “We have to fire Billy.” He also shared the typical responses to those questions. He suggests that HR managers ask themselves these questions to find out whether firing is a good idea. If your supervisor’s answers match the typical answers Wortman gets, better do some digging before going ahead with the termination.
1. How long has this problem been going on? (“A long time.”) It’s often years, Wortman says.
2. What have you done about the problem? (“I think we talked to him about it.”) In Wortman’s experience, supervisors have rarely taken a systematic approach to fixing the problem.
3. What do the performance management documents say? (“Well, we sure didn’t give him good reviews. I think he was rated as ‘meets expectations.’”) Supervisors and managers think that “meets expectations” is a “bad” rating, because it’s the lowest that they ever give. Juries, however, take it at face value. “Meets expectations” sounds pretty good—what more could you ask? That rating is certainly no reason to fire someone, a jury might conclude.
4. Was there a disciplinary write-up? (“Uh, no.”) Typically, the poor behavior that is the basis for the planned termination has been pretty much ignored. Supervisors and managers hope that it will go away on its own, Wortman says.
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5. Why are you firing this person now? (“It’s time,” or “We hired a new person.”) That’s not much to hang your hat on when there’s no documentation and performance evaluations are neutral or good, Wortman says.
6. Why are you firing this person and not the supervisor? (“What do you mean?”) This question always surprises people, says Wortman, but it’s a very important and rather obvious question. If the supervisor let the behavior go on for years, with no documentation, no discipline, and good performance ratings, who’s the one who should be fired?
In tomorrow’s Advisor, more of Wortman’s tips from Las Vegas, and an introduction to an extraordinary new training system that will get your new supervisors on the right track from the beginning.