Hiring/firing practices - RECF response [split from IFI thread]

[NOTE: The following was originally in reply to this post and the one immediately after, both critical of the RECF response posted in that thread. I should have started a new thread at that point instead of taking the things further off topic. I was not being sensitive to the original post, which was extremely painful I am sorry about that.]

I have some thoughts, but I wanted to start by saying thanks to Amy and everyone else who spoke up despite the obvious pain they needed to relive. I hadn’t said that anywhere, and it should be said.

Bear with me for a moment while I share some background. As a hiring manager at my job, I needed to go through a lot of training about employee rights, bias, and privacy. I expected it to be similar content to other harassment prevention training I had, but I quickly realized I had a lot to learn about what management can and cannot do legally when faced with bad behavior in the workplace. Most employment law protects the employee. Appropriately, IMHO, and probably not enough, but nonetheless, management must be incredibly careful when screening potential employees and disciplining existing ones.

Having learned what I learned, I believe the RECF response thus far is exactly what it needs to be.

Dan Mantz posted within two hours apologizing and committing to investigate and follow up. Today he confirmed the initial account, apologized again, and stated unambiguously this behavior is unacceptable. More importantly, he described a concrete plan to prevent this from happening again:

This may not sound like much. On reading about those break room conversations, I am sure many would like to hear that people were disciplined or fired. If that did happen to anyone, divulging that would breach privacy. Moreover, it is very difficult to terminate an employee over a single incident, especially if it involved policies that were not communicated to and acknowledged by the employee.

That’s why I am happy to see the training put in place for all staff. Training like that always includes a test and, importantly, acknowledgement by the employee that they know and understand the policy. With that acknowledgement in place, policies are easier to enforce. At a minimum, people are more careful in the workplace after making that acknowledgement.

WRT hiring practices, I can say with experience that it is virtually impossible to address this when interviewing candidates. You need to keep the interview very focused the specific requirements of the position when assessing a candidate’s suitability. Aside from a criminal history, you cannot really delve into an employee’s past. In training we were told we shouldn’t even google the candidate, as that could become the basis for legal action. All of this is, of course, to protect employees from bias, but the side effect you cannot screen out jerks.

Anyway, sorry for the long post, but thought this was worth sharing. I am personally amazed and shocked at the IFI’s responses, especially compared with the RECF response here.

P.S. Time will tell, of course, whether these actions are a one-time crisis response or part of a real plan for the future. At the moment, though, I believe it is the correct response.

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Texas is an at-will employment state. That means your employer can fire you without notice for pretty much any reason or no reason as long as it is not illegal. On the flip side, an employee can quit without notice. I’m not a lawyer, but there is nothing obvious protecting these employees if the organization so chooses.

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My org uses “culture fit” as its mechanism for evaluating soft skills like “is not a misogynist.” This is, for all intents and purposes, a job requirement. We long ago recognized that a good engineer improves product but a good person improves everyone on the team and together they improve the product significantly more than any individual ever will.

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As I understand it, the “not illegal” part is the catch, because federal employee protection laws apply. Even in at-will states, terminating employment without a well documented reason opens an employer to legal action.

If a candidate told me men are better at programming or anything close to that, it would be a hard no. My point is a person may be a jerk, but it is difficult to screen for that because people are on their best behavior during the interview. Trying to interview for that behavior is difficult and carries risk. Our most recent training even cautioned us about soft skills and culture questions because they can be subjective and prone to unconscious bias.

To be clear, I cannot believe staff thought that break room behavior was okay on any level. For that to occur, there are serious gaps in enforcement of policies at the RECF Greenville office.

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Terminate an employee, even an at-will one, for no reason? Get ready for a lawsuit, one that you will probably lose.

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Can we ask a mod to split this out? I agree with @cadandcookies statement, that the philosophy, and theory in the discussion is insensitive to discuss on this thread.

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This is all factually incorrect. In these states a reason is not needed. In reality, it is easier from them to fire and not give a reason and is usually how a termination ends. That way the reason cannot be factually disputed in court.

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You’re reading the letter of the law without understanding the history/practical implications of at-will employment. Both @DrewTheRat and @Turbodog raise good points.

This is technically correct. You do not need to provide a reason. However, it cannot be for an illegal reason (e.g. discrimination based on age/race/sex, retaliation, etc.).

This is where you’re argument really goes sideways. Not providing a reason opens the employer up to significantly more legal jeopardy. If the employer cannot articulate a reason why they terminated the employee, the employee can much more easily come up with an illegal reason and claim that is why they were fired.

For example, if a worker is significantly less productive than their peers, and that worker is also elderly, if the employer doesn’t provide a reason for the termination, that employee is very likely to sue on the basis of age-based discrimination. However, if the employer says “look how much you produce compared to your peers – it’s not a good fit,” the employee has very little ground to stand on in a lawsuit.

At-will employers who know what they’re doing will generally document a reason for termination even when not required to by law. Lawsuits are inevitable, and having some data to back up the legality of your decisions doesn’t hurt.

Here’s an interesting read if you want more.

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This is a fascinating discussion, but I feel like it has quickly lost relevance to the matter at hand.

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that’s all well in good, but it practice employees do not give reasons for terminations. I have lived in two states that are “right to work” and in most cases, reasons for termination are never given. When I was a manager back in the day, it was company policy not to give a reason for termination. But hey, this is just my personal experience.

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“Right to work” != “at-will”.

Right to work generally means that you don’t have to be a union member paying union dues to hold a job. You have the right to work without a union.
At will means that either side can terminate employment, for any reason (except illegal ones), at any time and without notice.

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(time for a split thread, I think)

In the United States, “right to work” laws are exactly what you describe – the guarantee that one can collect wages for their job without joining a union and, importantly paying union dues. However, there is a more general, globally recognized term, “right to work,” which guarantees anyone seeking employment may gain said employment.

Interestingly, Wikipedia sums it up very well, with references to see more on each term:

In the context of labor law in the United States, the term "right-to-work laws " refers to state laws that prohibit union security agreements between employers and labor unions which require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee’s choice of being a member of and financially supporting collective bargaining organizations (i.e. labor unions).

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Even at-will state firing for cause can effect employment insurance which effects the company premiums. If you don’t give a reason, the fired employee can collect unemployment insurance. You still need to be consistent with your policies and employee handbook. Larger companies will have policies that will require more procedure than at-will actually demands. You see this especially for companies that are multi state employers. When asked externally most larger employers will only confirm dates of employment.

Even at right to work and at will states (like Georgia) the union contracts can effect who gets hired and how non union employees get fired.

Privately owned companies with the owners in active management… The owners can ignore company policy often without repercussion.

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yes, sorry. wrong phrase typed quickly.

I’m not a lawyer, but I’m fairly confident that (at least in the US) federal law supercedes state law. Each state might have a set of “it’s own” employee rights, but those build on the federal law, they don’t replace them. This doesn’t prove or disprove either side, because each situation has it’s own unique factors.

The biggest thing to account for is if the individual you are terminating identifies with any sort of minority groups. Just cutting them off for no stated reason opens up a lawsuit opportunity, saying you fired them due to what they identify with. That is a breach in federal law and you will not be able to prove the claims wrong because you never gave a documented reason. This doesn’t apply to everyone, obviously.

In some states, reasonless terminations might be technically legal, but that doesn’t mean you should. Unless you have an airtight cause that doesn’t breach federal or state law, it’s not a good idea.

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Virginia has a “at will” work law. what that does is pretty simple and puts the onus of proving unlawful termination on the employee. Employees cannot dispute a termination unless that can prove in a court of law that it was discrimination or some other breech of federal law. Even if an individual is a member of a protected group, it is VERY difficult to prove wrongful termination. Heck, most terminations I worked through were filed as layoffs just to get around these sorts of issues.

What I’m hearing in this thread are best practices, but not reality.

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I would be careful not to use too sweeping of a statement of “dispute” here. The bar for “disputing” a termination varies widely depending on context.

One key reason employers will document reasons for termination (even if those reasons aren’t freely given to the employee in the process of terminating them) is for unemployment claims. Eg. for an ex employee to file for unemployment, they don’t have to prove they were fired for a wrongful reason to get unemployment… the employer has to prove there was cause in order to block the claim.

In a wrongful-termination civil lawsuit context, the employee potentially needs to just have more evidence than the employer to win a judgement. An employee with a moderately-supported claim for eg discrimination, vs an employer who says “oh, it wasn’t that, but also there was no reason”… the employee may find much more success than they would if the employer just had some basic documentation handy of work performance issues or something. This doesnt always get communicated to the employee during their firing though.

At will employment does certainly offer a lot of legal protection to employers who fire employees… it’s just not as blank of a check in reality as it might look like on the contract.

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understood. just as the laws that protect employees from wrongful termination aren’t as protective in reality as some would interpret them.
Life is messy.

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I’m sorry about that. I thought a couple posts were unfairly critical of the response from Dan Mantz and RECF, which for me stood in stark contrast to the awful the IFI responses. I shouldn’t have used that thread to make that point.

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That’s true, although that’s not the entire story. A better way to say it is “…that means your employer should be able to win any wrongful discrimination lawsuit you file so long as they did not fire you for an illegal reason.” If you just fire somebody without documentation of some sort of wrongdoing, then you leave yourself open to claims along the lines of “They said they were terminating me for X, but really they were terminating me for Y.” Employers want to fend off that potential lawsuit by getting their ducks in a row before terminating somebody, so they spend effort documenting that X really was the reason.

Also, note that being an “at-will” state means that “at-will” employment is the default. Employees and employers can agree to limit the employer’s ability to terminate somebody – that sort of thing is more common with high-level employees.

(Also, IIRC, Montana is the only state where ‘at-will’ is not the default.)

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