What’s the Right Way to Fire an Associate?
If a firm is going to fire associates, what’s the best way to handle it?
That’s one of several questions raised by the email sent by a former associate at Paul Hastings that landed on Above the Law earlier this week. (Click here for the post.) The implication of the associate’s email: that the firm had laid her off for pretextual reasons, blaming her work performance when, in actuality, the firm wanted her gone before she had “a chance to get pregnant again.” (According to the email, the associate had recently suffered a miscarriage.)
A Paul Hastings spokeswoman told Above the Law: “We disagree with the person’s description of what occurred, but. . . we don’t comment on internal employment matters.”
Granted, we don’t know what actually happened between the Paul Hastings associate and the firm, and that situation also raises the issue of possible pregnancy-related discrimination. But the email also talked about business slowing at the firm.
Given the economic climate, other firms already have and may need to fire associates: If they do, what’s the right message, internally and beyond?
Some associates, apparently like this one, feel firms blame their performance when the issue has entirely to do with the firm’s economic performance. The firms’ motivation? Fear of what impact the “L” word, as in layoffs, can have on law-firm recruiting. “It conveys an image to the talent out there that they’re fungible,” says law-firm consultant Peter Zeughauser. “And lawyers or law students don’t want to be thought of as fungible. So, given an array of choices, they’ll go to a firm where they’re not perceived that way.”
But Zeughauser and others say that when a law firm is forced to lay off associates, it’s important to be honest about the reasons behind the moves. “In the world of inside sources and blogs, everyone knows why you’re doing what you’re doing anyway,” says Dan Weiner, the co-chair of the personnel committee at Hughes Hubbard & Reed in New York. “To try and put a false face on it is not going to help you at all.” Weiner says the firm hasn’t done and doesn’t anticipate layoffs, though it dealt with the issue many years ago.
Both Weiner and Ashley Brightwell, a labor & employment partner at Alston & Bird in Atlanta (firm name corrected from first version of this post), say that often multiple issues are at play in the decision. “Is it economic or is it performance-related is a false dichotomy,” says Weiner. “If you’re required to trim staff, you’re not going to pick people randomly” he says. “Expensive people who are underutilized” are the ones firms look at first.
“A lot of times the decision is easier because you’ll know that a certain practice group is one you need to cut,” says Brightwell. “But if you’ve got a group of five that are relatively equal in terms of seniority and background, then it comes down to performance.”
The trick for a firm, says Brightwell, is to have solid documentation to back up a claim that a termination is performance related. “I would never advise someone to say it’s performance-related when it’s not.”
LB readers: Should firms be as worried as they are about the reputational ramifications of layoffs? What’s the best communication policy when the firings have to get done?
Is to not fire one if you value your reputation amongst potential law school recruits. Sorry partners! Maybe you’ll have to take the Jitney, not the Luxury Liner to the Maidstone until the market improves!
first
You got Brightwell’s firm wrong — she’s with Alston & Bird.
Firing someone is hard, but it can be done with a minimum of PR disaster.
Firing someone face to face is frequently the best way — communicate honestly and openly about why that person is being fired. Don’t weasel or equivocate. Be straightforward; you’ll be treating the target with respect. If it’s due to lack of hours due to lack of work, say so. If it’s because the associate wasn’t performing up to par, say so. In all events, the firing and the reasons behind it need to be documented.
Oh, and firing someone in the middle of a personal crisis is classless and TTT, but can be done. Just be prepared for a PR disaster.
No associate should ever be fired. They should surf the web on the firm’s dime until business picks up. And while surfing the web on the firm’s dime they should complain about how terrible it is that firm’s are firing associates who have nothing better to do than surf the web. And that is just the way it needs to be or no one will every work at your firm ever again.
IF they fired he for getting pregnant, good for them. She shouldn’t have taken such a demanding job if she planned to take so much time of for a lifestyle choice. If I asked for 3 months to go do something I wanted to do to improve my life, my firm woudl say, “enjoy, and why don’t you take the rest of the time after that off too.”
fifth
I’ve been there. I think it’s morally reprehensible when a firm will trash an associate’s reputation in order to hide from the market place the firm’s own economic problems.
It also leaves the associate in this bizarre position of not knowing what to say when interviewing - was I fired or was I laid off????
If my hoppers is not performing like they ought, I just tell Chris and Snoop to take them over to one of dem boarded up row houses. Can’t be havin’ my name and my product gettin’ weak. My name is my name!
If they fired her for getting pregnant they may have broken the law, and it is super shitty for them to fire her right after she had a miscarriage. She has probably worked 80 hours a week at that firm at times, yet they can’t throw her a bone at a difficult time in her life. Heartless, and not good for the bottom line - good luck recruiting the best law school grads after that.
Anonymous you are a goof. If women can’t get pregnant at a demanding job the only women who will get pregnant will be Target stock clerks. My wife managed to write a science PhD thesis while puking her guts and doing research. How much easier it would have been for her as an associate. Just deal with it and your fundamental personality flaws.
Here’s the deal: Paul Hastings needed to lay off some associates because they were slow on work. So what do they do? They lay off the female associate who just had a miscarriage and who everyone knows will try to get pregnant again soon. They chose her over male counterparts, even though she consistently had excellent reviews, because she’s a woman, they thought she’d get pregnant again, and the chances would be good that she’d go part-time or quit (which is hardly uncommon). This might have been a perfectly reasonable business decision by Paul Hastings—choosing to let go a good female associate over a male associate given the question that the female associate might reduce hours or leave—but for the fact that it’s discriminatory and illegal (not to mention an outright lousy thing to do).
Thinking she was fired for pregnancy-related reasons is ridiculous. Firms are so terrified of bad law school and public PR and lawsuits, they keep around underperforming asscoiates, including mothers, mothers to be and every other “class” of potential claimants for exactly that reason. If the firm was willing to fire her despite he pregnancy issues, the truth is this associate was probably a weak to poor performer. The rule is simple: the worst go first. You always find reasons to hold on to exceptional (as opposed to acceptable) associates, even if business in their practice slows. When will gen-Y accept the fact that they are fungible billing units (as are partners), they are not special, just showing up for work does not get you a trophy (or a bonus)and that you actually have to work harder than others to succeed beyond them? My solution: make them all partners, and thus responsible for their own profitability. That would be fun to watch.
As a Controller, I am concerned about the need to adaquately disclose potential lawsuits in the financial statements a firm would be providing to outside parties. If you tell me someone was terminated for performance reasons, I would reasonably conclude that the person performance was subpar. If you tell me that same person was laid off, I would assume the firm had a business reason for terminating the relationship. See how that might impact employability. If I get it wrong, I loose my company. How about you guys do the right thing just because it is the right thing to do?
What does it mean to “loose” your company, Bob? In all the accounting literature I’ve ever read, I’ve never come across that term.
It’s obviously nice to avoid firings/layoffs all together, but if you’re going to do it, be honest as possible about it. I’d think better of a firm that laid people off than one that just shockingly! discovered! that a ton of junior associates were suddenly subpar and started firing them. I’d also be more likely to take a job with them if business picked up later, since I’d feel safer that if things went pear-shaped later, I could go on the market as laid off for business reasons instead of fired on some pretext.
Oh, and Gen Y Bother and Anonymous 5:03? On the plaintiff’s side, we love you guys!
It is a lifestyle choice, i.e. pregnancy. I think fair’s fair. If a woman gets to take off that much time, there should be something for the men to an equal way. You won’t believe the garbage that you take as an Orthodox Jew for taking off time in a rigid manner. And those are the breaks. I don’t feel for anyone. What comes around, goes around. That’s what an employer once told me.
5:58 - You have no idea if that’s how it happened or not. Why don’t you stop talking out of your a$$ and instead work on getting that massive chip off your shoulder.
The best way is the old fashioned way: send a security guard to the person’s desk with a packing box and an envelope with the termination note. Give the associate ten minutes to pack up personal items and to turn over ID stuff like the building ID and office entrance swipe card.
Nothing like a public termination to instill fear into other staff members, to let them know that all this talk about being a “team” and the importance of morale is hokum.
I’m no lawyer, but it sounds as though they were asking for her to give up an awful lot in exchange for 3 months salary, and no medical.
Anyone who goes public gets some sort of job. She did the right thing, and she’ll be fine.
You’re fired!
blatant discrimination.
Mr. Weiner’s comments are interesting considering Hughes Hubbard just recently (a) laid off associates and (b) blamed the lay offs on performance instead of lack of business.
Let’s not hire men anymore. They marry, their wives become pregnant, the wives quit working to raise the family and their household income plummets. SO THE MEN LEAVE TO TAKE HIGHER-PAYING JOBS.
Let’s only hire women. They cannot afford to stay home on one income and will come back to work. We can give them flextime, pay them 80%, make them work more and the bottom-line will come out ahead.
Having babies is somewhat of a “choice”. But if no women chose to have children - there would eventually be no one left on earth. I think it’s sad that some of these men think so little of childbearing and the role women have in society. I pity their wives and mothers. The fact they don’t think it’s right for a women to have a high stress job but have to take time off to nurse a newborn and be able to walk again (if you have a c-section it can take at least 2 weeks to walk or drive again FYI).
i didn’t read any comment above. but i say this: yes, firms absolutely, if they’re on top of their game (as paul hastings is not and never was), should do this openly, humanely, and forthrightly, namely admit that it’s the firm’s partners who screwed up and didn’t hold up their end, and so associates suffer. and to short circuit the analysis, not that some housecleaning isn’t appropriate from time-to-time in the associate ranks, and that peoples’ “performance” as reviewed by whatever artificial system you care to use will always be a bell curve, but frankly they should have culled the partner ranks first, as that’s where the problem lies. associates too, but partners always. will they? maybe, probably not. too bad.
btw, three months’ severance is crap. SIX months where it’s a valid “performance” review, and between 6 and a full year depending on how humane the firm is and if it’s really firm shortfall rather than associate performance (unless the associate spectacularly screws something up, and is senior enough properly to be called to account for it). and they wanted her to sign a release for a measly 3 months’ pay? ha! easy choice. these guys are so dumb. offer something the firee would be hard pressed to refuse (e.g., the godfather quote), like 6 months. not only bastards, but cheap (and dumb) bastards.
I totally agree with anon 1:41 and would add that these firms all have maternity leave policies which usually consist of 6 weeks paid and an additional 6 weeks unpaid at your option so for people saying she shouldn’t have taken the job because she planned to take 3 months off (after TEN YEARS working for them!) that is contrary to the firm’s own policy which is to allow 3 months off for childbirth and recovery.
I actually don’t think she was fired for anything to do with the pregnancy and I think she let her emotions get the better of her by bringing that into it, which is a shame. I think this was purely economic (not performance-based either). I would hope not to sully the private, intensely personal experience of pregnancy and miscarriage by dragging it into this dispute. But that’s a personal decision and she seems to have done nothing wrong.
HHR has been not so secretly laying off people since the end of last year. And those who survived the ax, are scurrying around town trying to find new jobs.
I think that the question is how you fire any employee where “fire” means for cause.
If performance is the issue, give feedback to unsatisfactory employees and be explicit about expectations. If the expectations are reasonable and not met within a reasonable period of time, you can fire them with a clear conscience.
What you DON’T do is give them a favorable performance review then fire them a week later out of the blue.
If you have to lay people off, be honest and honorable enough to admit that that is what’s going on. I’ve seen layoffs labeled as “firings” on numerous occasions before. There are few things as embittering.
Additionally, in order for the employer to save a little competitive vanity, they have tainted the prospects of the victim virtually for life. It’s nothing short of highly immoral.
Employers now ask applicants if they have ever been fired from a job and why. Employers are demanding perfect transparency from employees but don’t remotely hold themselves to the same standard.
“If a woman gets to take off that much time, there should be something for the men to an equal way.”
5/8@9:02pm: When did men suddenly start carrying/giving birth/nursing newborns? I missed that news flash.
Paul Hastings’ separation agreement was asking too much of the dismissed associated in this case. And all for a crummy 3 months salary? She was correct to tell them to stuff it.
Hmmm… American employment scene seems almost as bad as your health care.
The general rule of thumb in Canada - if you allege “cause” (theft, insubordination, incompetence), or even allege, for eample, a professional shortcoming (underperformance) in a layoff, you expose yourself to serious damages. Having the security guard stand over and escort you out is exactly what “Wallace damages” are all about. (Wallace was fired like that, and established by lawsuit that employees must be treated with dignity in the situation where the employer has the overwhelming upper hand).
As for pregnancy - hmmm… Canadian law REQUIRES up to a year absence (with paltry gov’t unemployment benefits) after which you must get your same or equivalent job back. A hint of discrimination and you’re nailed to the wall.
After all - professionals in the 21st century? What are the odds they’ll have even 2 kids? It’s not like the 1950’s where women quit to raise 3 or 5… Oh, and fathers are entitled tosame rights for paternity leave instead of the mother if they so choose.
Hey, MD200 —
1. Our health care system is far, far better than yours. People die waiting for treatment in your socialized cesspool. Only 15% of our population is uninsured, the quality of our care is much higher, and even the uninsured get treated in the ER.
2. Yes, your employment rules are also more socialistic. That’s why you’re much poorer than the U.S., with a much lower standard of living, and heavily dependent on the U.S. for economic and military support.
Not exactly something to be bragging about, eh?
Nothing is going to change.
People who care about their integrity ask that question before they fire someone, simple as that.
I think ML might be right - purely economic but what timing.
To those grousing about pregancy leave - men in lots of countries get father’s leave and some companies here offer it. Also, Fam and Medical Leave legally mandates it, though not pay.
And those who serve in the military reserves can’t be fired, no matter how long they are gone off to war. I never ever ever hear anyone complaining about that.
But I have seen men who seem to lose it when women get pregnant - mostly in wall street brokerage firms. they act like they have been betrayed.
A post above described what firms do that are on top of their game and says Paul Hastings definitely isn’t.
Which big law firms are more humane? I’d like a survey.
Does anyone have any they can recommend?
Maybe I am on to something there — is it a haram mentality, operating subliminally in these male brains?
Does the pregnancy send them into a tail spin?
The Paul Hastings case is not a good example, but since we are on the topic, and there are plenty of horrendous pregnancy discrimination cases out there, let’s ponder this.
Because it is true that discirmination agaisnt the mostly men in the military reserves is far less common, and their absences can be substantial.
Blaming it on her performance, puleez! For every good employee that is let go because she is a woman, you keep the one of the partner’s relatives or girlfriend who is not performing well and you know (as well as everyone in the firm) who you are.
Shoot, more power to her, man. A way to stick it to the firm for sticking it to you! Professional or not, she spoke her mind as a human being. That is not something you critique. We hide behind this ‘professionalism’. “Oh you gotta maintain your professionalism…think of your future.” Screw that. What is professionalism but a way two people or firms conduct themselves with due respect for each other’s time, efforts, material resources and, most importantly, human dignity. Professionalism does NOT and should NOT replace normal human behavior. It’s, in fact, our very effort to extend our normal human interactive standards to our work settings. And it’s customary for this courtesy to be offered mutually. Once broken (and my opinion is that PH broke this), I say all’s fair. All the best to her. I’m sure she will have days when she will second guess herself for doig this. But nothing will take away from the fact that you called it like you saw it. Best of luck to ya.
I don’t work in the legal profession, but in another high-paying associate-eating line.
Many years ago, as a new associate in one of the most respected teams on the street, I fell sick and was faced with an indefinite series of operations / hospitalisation, with the potential to lose my life. Guess what, I was pushed out 2 weeks prior to the operations for supposed reasons of overstaffing. I appreciated that they did not badmouth my performance, but I was left to pick up the medical tab and deal with a hole in my CV.
Rebuilding a new career took a couple of global moves, paycuts and personal sacrifices. The employment lawyers definitely did not make it easy for naive me by coaching the firm to look after its interests and consequently screwing me.
Just last week, as the top-performing (and best paid) associate who had followed a fabulous guy to work for a start-up, I was canned. Why so? I was assigned to work with a monster who had accumulated complaints from the Northern Hemisphere to the Southern Hemisphere (this is for real!) but is protected because he is a key rainmaker. I was on a particularly large (very important) transaction with him where I got threatened a few times, yelled at every 10 minutes and pushed to add in dubious content. Time-off to get a catscan (for previous medical condition) was disparaged and discounted. The deal eventually fell through. And I was terminated for “failing to meet expectations”, to deliver the goods on time and for not being able to take stress. All this for someone who was publicly acclaimed as “top in the class” and who has mentored and trained most of the junior analysts on the team.
I went back to the management with email records of everything I have given the monster rainmaker, and they just kept quiet and say that they must word the termination letter as requested by the lawyers, but they would give me a good reference in private. I’m not sure I trust them anymore.
Eileen King, Global Director of Public Relations for Paul Hastings, is a liar. On May 12th she claimed publicly that Paul Hastings is not laying off associates. The truth is that Paul Hastings partners were advised at their annual partners’ retreat in Palm Beach on April 3rd and April 4th last month that they would be required to lay off senior associates in each of Paul Hastings’ offices worldwide in order to deal with slumping business in Paul Hastings corporate department. In addition, Paul Hastings began laying off corporate and real estate associates last fall and has thereafter continued to stealthily lay off associates, approximately two at a time, to avoid media attention.
