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>> As a manager I can't very well come along later and say "Here's the real reason we let you go." Because the lawsuits would start to fly.

As a manager, it's your job to do that BEFORE you have to can them. There is no reason you can't take a person aside and have a discussion. Is anything wrong? Are you OK? In my opinion your performance is lacking in area x,y,z. It's your job and it sucks to have those conversations, but don't feel bad after the fact for slacking off until it's too late. Nobody should be fired for poor performance and not have a clue as to what went wrong.

It doesn't always work like this. I once took over a team that had an extraordinarily unprepared developer - of the "tough time with fizzbuzz" variety. He was a nice guy, and I felt bad cutting him loose. My predecessor (who had hired him) didn't understand software development and had no way of giving him the kind of feedback that would have prepared him for this. I don't think the guy was totally surprised, and years later (when I met him randomly at a party) he said he had no hard feelings about the incident. But he sure looked disappointed at the time.

Friend of mine took over a team which had a guy with the opposite problem (though he was a pretty nice guy too). He had the skills to do the job. Indeed, he'd been doing it for three or four years. Then one day he just decided he didn't like software development any more.

Now, a normal person would have gone one of two ways. Either they'd start looking around and find something they thought would be more interesting and then leave for whatever that was, or they'd grit their teeth and keep doing the job they didn't like because they need the paycheck and couldn't find anything that paid enough (guys with families, mostly).

This guy, though, figured the things he liked paid less, so there was no hurry to leave. But he didn't have enough personal integrity to actually do the work while he was still drawing a paycheck. So he just stopped working. He'd show up for work every day and surf the web, listen to ball games, talk on the phone, etc.

It took some time, but eventually my buddy sat him down and said "Look, you need to start actually working instead of just showing up to the office," to which the guy replied "No. You're going to have to fire me".

He made my friend grind through all the paperwork to actually fire him. It's a big company, so it took awhile. They gave him verbal warnings, written warnings, put him on a "performance plan", and eventually he was fired. It took months. He wasn't disappointed or resentful or anything. He just took his couple months of free money and waited around for the paperwork to go through.

>As a manager, it's your job to do that BEFORE you have to can them.

Absolutely. And I did so in every case. The problem is the sort of person who's clueless enough to actually get fired is the sort of person who going to ignore what you're saying, either because they think your real problem with them is that their a woman/black/gay/old/whatever or they have a big ego that won't allow them to consider they might be doing something wrong or because they figure they have a lot more slack than they really do between "you need to shape up" and "here's a box for your stuff".

If you're actually going to fire someone for cause you need to need to have a paper trail, which would make that all official. But. If you establish a paper trail and then try to pretend you're getting rid of them because there's no money you're going to get sued. So companies usually don't go the "for cause" route at all.

>> If you establish a paper trail and then try to pretend you're getting rid of them because there's no money you're going to get sued.

Wait what? I know you can get sued for all sorts of things, but what is the reasoning here? Is it that the given reason is money, but there is evidence that the reason is something else? So what? Would they claim you lied because you don't really have a strong case for the real reason? I'm just confused by this.

First off put the thought that the law makes sense out of your mind. It doesn't.

Basically the outline of the suit is going to be "You always wanted to fire me because I'm black/Latino/gay/old/fat/thin/sick/whatever, so you tried to pretend I was doing a bad job. But then when it became clear I was such a good employee you couldn't do that you pretended it was an economic decision."

Now, this may or may not fly in court, but from the company's perspective it's a crap shoot, since you never know what a jury is going to do. They'll settle if they can. Which means lots of people will sue just looking for free money, even if they know it's all bullshit.

I think anti-discrimination laws are probably fundamentally flawed. I think they should be killed, but with an exception allowing the EEOC, anti-trust or similar to order particular sets of companies to stop discrimination for a period of time if necessary.

Is it possible to have the employee waive his right to a wrongful termination lawsuit? A waiver seems to be a condition of many severance packages, although I'm not sure how enforceable it is. Could thorough and actionable analysis be treated as a form of severance?

It's not a perfect solution, but I'd prefer the option if I were in that situation. The expected value of a wrongful termination suit might be less than good career advice.

Can you imagine bringing that up?

Hi, you're fired, but here sign this legally binding contract so I can tell you why you are a terrible employee.

This would likely become the employment equivalent of those fine-print "Buy ordering from our website, you agree to not write disparaging reviews of our products." policies on various web outlets. By all accounts non-enforceable, but more than likely would just be used as a bullying tactic against people who lack the funding to take it to court.

long ago, when I had just a tiny company and we were essentially a friendly lot, we'd do skits once a month, competing to come up with the best reasons to fire each other, for prizes and forfeits. It was a game, but it helped among other things to relieve a lot of internal tension that might otherwise have politicized us.

About that time, or rather a few years later, reflecting on those skits, I told my cofounder, "Dude, I have come to the conclusion that lately if I worked for myself i'd have quit, and if I hired myself i'd have fired myself. What went wrong?" as a result I stepped out of management for a while, and hit the proverbial drawing board.

I can imagine now that someone would sue for this sort of thing being bullying at work, or some such rot, but the skits gave us often too much insight into the real effective personalities at our work, often in the "too much information" category, but almost invariably in good humor.

Just thought the exercise might yet benefit somebody else, still, for the mention.

What if they ask "Do you have any suggestions for how I could perform better at my next job?" That opens the door to nonspecific advice that could touch on those issues.

Not really, if the fear is being sued for wrongful dismissal. If the advice is so non specific that it doesn't contain anything actionable, then it's probably not specific enough to be helpful.

Essentially, if you give the ex-employee anything concrete to work on ("You could improve on skill X"), then the fear is that they'll demand clear evidence that they were deficient in that area at your workplace, which you probably don't have. Now you've weakened your case should the employee bring a wrongful dismissal lawsuit (under whatever laws apply in your state/country). Hence the reluctance to say anything at all.

It's not right (morally), but it's understandable.

Reminds me of a friend who used to manage a fast food outlet, it was corporate policy to never fire anyone, they simply would schedule the person 0 hours week after week until they quit.

This is why I'm skeptical of the value of things like ENDA. Without some higher level data collection to see trends in hiring and firing at a company, it would be hard to prove someone was fired for something other than performance since no one will even hint at a reason. Those demographic checkboxes on applications don't help if the people most likely to be targeted don't trust an employer to use it properly.

That's so true, and it's not just the US. Also, and perhaps even more so, Western Europe.

I have been saying that the CA employee defamation laws has to be changed since Yishan Wong's comment on Reddit.