Recently, I got a response on one of my social media posts regarding wrongful termination. The person responded, “Wrongfully fired, what about wrongfully hired?” At first I thought, OK, this is a smart alec remark. But then, as I thought more about what he was saying, it actually struck a cord.
We speak a lot about wrongful termination and the cases in which someone can be unlawfully harassed and terminated at work, which are wrong and unlawful according to Federal and State law. But, what are the cases in which termination is lawful? We discussed prior that a boss not liking an employee, showing favoritism, or yelling at an employee, while being unfair and engaging in a poor management style, isn’t necessarily unlawful. Unfortunately managers and bosses can do lawfully do those things – it becomes unlawful when either a manager, boss, or co-worker does so based on a Federally and State recognized “Protected Class” – harassment, discrimination, adverse action, firing, etc based on gender, race, ethnicity, national origin, sexual orientation, etc federally and within states there can be additional “classes” or groups that this protection applies to.
But, what if someone is hired by a company with the best of intentions, but the employee is simply not a good fit for the role and/or is not qualified? Well, much of this should have been ascertained in the interview process. Interviewing is an art form and there is something called BBI – Behavioral Based Interviewing that should be used during the interview process to make sure that employees are going to be the right fit for the job.
However, many companies and hiring managers are not well trained in BBI or even really know how to interview, hire, and onboard properly. However, even in the best circumstances, if all of those things are done right, an employee may still just not be a great fit for the role. The skills that they touted in the interview and on their resume may not be as robust as described. Therefore, they may not be able to fully complete the requirements of the job and their work product may then suffer or be inadequate.
For example, if they are in sales, they may not meet the quota. Maybe they didn’t realize how much cold calling the job really entailed and they are not good on the phone. Maybe the job requires advanced Microsoft Office Skills, especially Excel and they are more intermediate than advanced, so cannot run the reports or use the formulas being asked for. The employee may have scheduling, personal, or childcare issues that impede them from coming to work on time, or at all some days, and being able to focus once there. The employee could be going through a divorce or may actually just be bored or uninspired or burnt out from the type of work they are required to do. There could be a myriad of reasons that employees do not perform well at work that are legitimate reasons for termination, including all of the above.
We’re going to delve into this issue further to see how companies should respond in ways that honor the employer-employee relationship and are lawful and when companies may cross boundaries from legitimate termination to wrongful termination, to the unlawful.
