Running Off an Underperforming Employee Is Not a Viable Option

In my long experience as an employment law attorney, I have come to realize that employers really, REALLY hate to fire employees. Some employers are scared of confrontation, others hate admitting they made a bad hire, and some just can’t find the right words.

Whatever the reason for being unable to fire a poor performer, employers often ask me about “running off the employee”. Running off an employee usually means making the employee so miserable the employee will voluntarily quit.

The employer trying to run off an employee may give the employee the worst duties at the company, criticize the employee in front of others, deny the employee’s vacation request, cut the employee’s pay, transfer the supervision of the employee to the worst supervisor, or make the employee work the graveyard shift.

Of course, this approach to termination often also makes the employee so angry that when the employee leaves, he or she becomes much more likely to sue the employer.

Running off an employee is the layman’s way of doing what we in the legal field call a “constructive termination”. A constructive termination occurs when the employer makes the working conditions so intolerable that any reasonable employee would feel forced to resign.

When an employee quits with good cause because the employer made continuing to work there intolerable, there are numerous legal consequences, such as:

  • Unemployment benefits can be awarded to the employee who quits with good cause. Normally when an employee voluntarily resigns, the Texas Workforce Commission denies the employee unemployment benefits and the employer’s unemployment taxes do not go up the next year. However, in the case of a constructive termination, the TWC will most likely award unemployment to the employee and the employer’s account will see an increased tax rate for the next three years.
  • If the employee’s pay is cut by 20% or more, the TWC automatically considers that good cause for the employee to quit employment, so that unemployment will be awarded to the employee and, again, the employer’s tax rate will rise.
  • A resignation for good cause is treated like an involuntary termination in discrimination cases. In other words, the employee can be awarded monetary damages for loss of back pay and other damages if the employee proves that the employer ran off the employee by making the working conditions intolerable.
  • An employee can make a better case of a “hostile working environment” in harassment cases if the employer created unbearable working conditions just to get the employee to quit.

Constructive terminations are not a solution to an employer’s fear of firing. With the time and effort it takes to run off an employee whom you believe is not performing well, you could be coaching the employee to improve or at least better documenting the employee’s failings so that you can easily fire the employee outright.

Firing an employee takes courage that some employers can’t seem to muster. But done correctly, the actual termination meeting can be planned out ahead of time so that it is executed calmly and professionally.

The termination meeting shouldn’t take more than a few minutes. There is no need to argue about it or try to prove your point. The employee is not going to see it from your perspective. Just quickly and firmly tell the employee that his or her employment is terminated and thank the employee for his or her service.

Just rip off that Band-Aid quickly by actually saying the words “you’re fired” and you’ll feel better much sooner than if you are fighting a constructive termination claim in a lawsuit.

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