Fired Up Over Firing
For many, "Fear of Firing" conjures images of workers insecure about their jobs. But in our Apr. 23 issue we used that language as the headline for our Cover Story, which reported that companies also can be fearful of passing out pink slips. Why? Because they might get sued. Much of the blame for this, we concluded, falls on companies when they don't offer regular, candid performance evaluations that would enable them to move out poor performers with minimal legal risk. Our story resonated with some readers but also provoked complaints that it was one-sided and overly friendly to management. Not surprisingly, the positions espoused by writers in their letters and online postings seem to have been heavily shaped by their own experiences. One noted that she has to pick up the slack for an underperforming colleague, whom managers are afraid to fire. Another reader, an attorney for employees, wrote: "Your article is so distorted and inaccurate that it is hard to know where to begin."
Numerous critics said we failed to acknowledge the high hurdles employees often face in pursuing lawsuits and the small number who ultimately win, given how many get fired. That's true. It's also true that fear is often a product of exaggerated perception of risk, and when it comes to axing employees, fear of litigation is widespread.
Here are edited excerpts:
As a management-side attorney, I have witnessed, exploited, and benefited from the failure and reluctance of managers and supervisors to provide regular, honest feedback to employees. Until this basic human aversion to candor, i.e., "fear of frankness," is overcome, poor and mediocre performers will continue to instill "fear of firing" and increase the risks of future litigation.
Gilbert F. Casellas
Editor's Note: The writer was chairman of the U.S. Equal Employment Opportunity Commission from 1994-98.
Your article quotes no fewer than five employment defense lawyers and seven corporate representatives in an effort to detail a so-called crisis of exploding employment lawsuits. The article quotes only one plaintiffs' attorney and one plaintiff to provide the other side of this story. Is that the journalistic balance BusinessWeek is known for? No.
The vast majority of employment lawsuits are legitimate and seek to redress significant harm done to employees.
You complain about companies potentially spending hundreds of thousands on fees and lawsuits. These are the same companies that spend hundreds of millions on CEO salaries and perks. You can't convince me that anything's wrong [with] due process and fair dismissals.
It may be trite to say, but it isn't the CEOs who earn the company money, it is the workers.
Screen name*: elissaf
I wonder why this article was not more balanced. Much was said to describe how difficult and expensive the litigation process is for employers. No similar view was offered for employees.
If your story was aimed at illustrating the risks and concerns about a company being sued for firing an employee, then facts and opinions demonstrating why employees are unlikely to sue their employers also should have been included.
Screen name: Wonderer
I have been working for a major pharmaceutical company for some time now and have had the unpleasant experience of working hand in hand with a classic poor performer. This colleague does not complete her projects, and because of our "team" environment, I am often burdened with picking up the slack. This colleague is an African American female who just returned from a six-month medical leave. When discussing the numerous problems others on our team have had with this individual, our manager always remarks on HR's inability to sack an employee who could so easily sue based on her race and sex.
As a female also of a minority race, I am appalled and saddened by this scenario as I, and my company as a whole, must bear the weight of this constant underperformer.
Screen name: osgoka01
After 30 years as a high-tech worker bee, I am still amazed by the sloppy and haphazard nature of performance reviews that seem to be everywhere.
Screen name: lonesome moderate
Your article is so distorted and inaccurate that it is hard to know where to begin a response.
I am an attorney who represents employees. Nearly all employees in this country are "at-will." A rationally managed business can fire an at-will employee at any time without even giving a reason. The text of the article somewhat addresses the problem of inept management. However, the title, the drawings, and the graphics are all designed to perpetrate the irrational view of nonmanagement employees as lazy workers who will turn against the company whenever they can find an opportunity.
Your article broadly paints employees—particularly female and minority employees—as adversaries of management.
David L. Hagan Grover Beach, Calif.
Twenty years ago, an underperformer could be fired—end of story. Today that same underperformer has reason to believe that he, too, is entitled to be rewarded on the way out, just as the worst CEOs are rewarded on their way out.
There is no difference between the underperforming slob at the bottom [and] the underperforming slob at the top except that the guy at the top doesn't need the legal system. He has already been rewarded handsomely for his shortcomings.
Chino Hills, Calif.
You mention briefly that laws are in place to protect workers from illegal firings. I compare this to our justice system. It's not perfect, [but] it's the best we have. For all the underperformers who file frivolous lawsuits, there are those with legitimate grievances and valid lawsuits. I also wonder why I've never heard of a CEO filing such lawsuits. Oh, yes—probably because they have protections that pay them tens of millions whether they perform or not.
Panama City, Fla.
Fantastic. I just had this article put on my desk and had an employee all but threaten me to use this to get a severance. He is the laziest sucker to ever work for me. Now, even further tiptoeing will be required, and I continue to employ Mr. I-Don't-Care. Thanks, BusinessWeek.
Screen name: Frustrated
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