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On the Chopping Block
January 31,
2013 by in UnCategorized 
By Home Furnishings Business in on February 1, 2013
Be careful what you fire for.
An employers personal feelings are not grounds for a terminationit must comply with the law. That sounds like common sense, but a couple of recent lawsuits illustrate how alleged subjective judgment on a furniture retailers part landed the business in court.
In January, Isabel Perez sued Ashley Furniture Homestore licensee Factory Direct of Secaucus, N.J., in Federal Court, claiming that a manager said God told her to fire Perez, who is a lesbian.
And in Chicago the same month, Ashraft Dabbah, who is of Middle Eastern descent, sued The Roomplace in Cook County Court, alleging he was fired on the advice of a consultant who suggested replacing managers with accents.
However those cases turn out, they create legal headaches and negative publicity that can be mostly avoided through a termination process that is fair, documented and legal.
Jill Benson is an attorney specializing in employment issues in the Greensboro, N.C., office of Womble Carlyle. Overall, she noted, employers actually have a good bit of leeway when it comes to reasons for dismissing employees.
You can fire someone at any time unless its for unlawful reasons, she said.
Benson emphasized that while at present there is no federal law that protects an employees sexual orientation such as the case mentioned above, More states are jumping on the bandwagon to protect sexual orientation.
When it comes to firing an employee, retailers should look at their states law to determine if youre in compliance.
She also had several other suggestions to make sure retailers are covering their legal bases when they have to let an employee go.
Companies should utilize a probationary or introductory period, Benson said. That lets the employee get to know the company and you to get to know the employee. Put it in writing.
Are you consistently following a policy for dismissals? In the real world, the laws going to favor a progressive dismissal policy with documentation every step of the way.
Documentation of warnings, counseling and the final action to terminate cannot be over-emphasized.
Its all about documentation, Benson said. Document clearly and in detail the basis of the determination (to terminate); who the decision maker is; and the specifics of (the employees) poor job performance.
Employers should review policies currently in place, and ensure that managers are following up on and documenting disciplinary procedures. Every furniture retailer needs to be completely up to speed at the management level on any labor laws that apply to the business. Ensure management is trained on policies and procedures.
I would recommend that all managers receive employment law training on an annual basis, because things do change, Benson said. Thats one suggestion: Updating written policieswith review by counselis the other.
PROCESS, GUIDELINES
Joe Milevsky, CEO of JRM Sales & Management, Acworth, Ga., said hes never terminated anyone when he hadnt already done his part.
If someone does something illegal, unethical or immoral, theyve done this to themselves, he noted.
Someones not standing before your desk getting the ax without a reason but creating guidelines and a process forces employers to do the right thing when it comes to termination.
Ive had no one who didnt fire themselves, he said. If they were struggling, Id put them in an intensive care situation (maybe re-assign duties, etc.) I want to give that person every opportunity I can, but if they dont do their part, if they dont fulfill what they say they will, then whose fault is it?
Milevsky suggested handling such counseling more as an agreement than a disciplinary action.
Some people feel that if they come to you for help its demeaning, but if they ask for help that tells me they want to grow, he noted. Everythings going to be done in writing, and we both sign off. ¦ Be very clear about the things to get done, and set a date that they get done. If it doesnt happen, then who fired whom?
Because it is usually preceded by strong documentation, an associate at Fairborn, Ohio-based Morris Furniture is rarely surprised when he or she is fired.
Our discipline is consistently applied and documented, said Morris Furniture Human Resources Manager Dan Little. Having a record that is documented, reviewed and tracked above the store manager level is key to having an effective discipline plan; this ensures fairness and reduces exposure.
Morris disciplinary philosophy is to change the substandard behaviornot to simply punish.
When an associate is terminated for cause it is handled professionally, and in person when possible, Little said. It is direct and to the point.
STEP BY STEP
Thomasville Home Furnishings stores has what Beth Sweetman, senior senior vice president of human resources at parent company Furniture Brands International, called robust guidelines for firing situations.
First, it happens on a pretty regular basis, unfortunately, she said. We start with the premise that we believe people want to come to work and do a good job, and we always give people a chance to improve.
We follow a progressive disciplinary process. It starts with a conversation: Theres a problem we need to work on.
The next step is a written warning, and thats when it gets more serious. Third is a final written warning: If this doesnt change, you will be terminated.
There are no exceptions to the process, so its fair; and its legally defensible, Sweetman said.
Taylor Ganz, vice president of finance, planning & administration at Profitability Consulting Group, noted that different states have different laws governing employment practices.
You want to document everything, particularly depending on how litigious the state youre in is, he said. Document difficult steps along the way, with specific dates and reasons.
That doesnt mean a retailer has to go overboard with forms, but at least a note documenting a counseling session needs to go into the employees file.
Ganz also believes an employer never should fire an individual in a one-on-one session. Always have a documented witness.
And get legal adviceno matter the size of your operationto make sure your firing process wont get you into trouble.
Consult with help available through industry organizations or consult legal counsel for proper hiring and firing procedures, he said, noting thats particularly critical for retailers with stores in multiple states. What might be permissible in Florida might not be in California.
Above all, make sure any firings serve a higher purposethe creation of a customer-centric organization where all members are pulling their weight in their assigned area of responsibility.
If you enjoy firing people you arent in the right business, but I see people who fail to terminate someone they need to terminate, Milevsky said. Sometimes its because they dont understand their missionare they in business to do whats best for the employee or whats best for the customer? Understand where our true obligation liesthe customer.
Ive seen people hold onto employees for decades just because they were around when the business startedthey might have been great for the first 10 years and then miserable for the next 30. HFB