What to do before and after you say ‘You’re fired!’

By SYLVIA HSIEH, Lawyers USA, the
national sister paper of Lawyers Weekly

[email protected]

When it comes time to firing a legal assistant, many small-firm and solo attorneys are making mistakes that can come back to haunt them later on.

Firing a once-trusted assistant is one of those dreaded deeds for any small-firm attorney with limited resources (and a heavy reliance on the once-trusted assistant).

As a result, the first mistake many lawyers make is either procrastinating too long or pulling the trigger too fast.

Both can lead to miscommunication at best and a lawsuit at worst.

“They procrastinate because of the disruption it will cause and the difficulty in finding someone to replace the assistant or legal secretary, so they tolerate poor performance much longer than they should,” said Bill Jawitz, a law firm consultant and coach based in Millford, Conn.

Addressing performance or attitude issues early on may even allow you to salvage the situation.

But not enough small firms have regular performance reviews where some of these issues can be aired – and documented in personnel files to justify a later firing, Jawitz said.

On the other hand, firing your legal assistant too suddenly can also be a detriment to your firm if you did not take time to plan for finding a replacement and transitioning to a new assistant.

In a small law office, it’s not practical to hire someone new without the soon-to-be replaced assistant getting wind of it.

One option is to hire a virtual assistant, with whom only you communicate remotely, before you have fired your assistant, said Ed Poll, founder of LawBiz Management, and a law firm consultant in Venice, Calif.

Don’t sugarcoat it

Once you decide to fire your assistant and have a plan in place, act quickly.

The longer you delay, the more likely bad feelings will simmer or the news will leak to co-workers or clients.

Many problems result from trying to be too nice, said D. Jill Pugh, an employment attorney in Seattle.

“You don’t have to be mean, but don’t sugarcoat it. Whatever the specific reason is, tell them,” she said.

For example, if you try to gloss over poor performance by saying the reason for the firing is because you can’t pay the employee, but you later hire a younger employee, “you can create a cause of action where one didn’t exist,” said Pugh.

After you’ve fired your assistant, it’s best to show him or her the door immediately, said Poll, who once got a call from an attorney who had allowed a fired assistant to stay on to help in the transition only to find that the assistant had sabotaged the entire computer system.

Because your assistant may have access to sensitive information, computer passwords and user IDs should be changed immediately.

In lieu of giving notice, offer a severance package of two to three weeks’ pay, recommended Poll.

And even if it may cost you more in taxes, don’t fight unemployment benefits, said Harold Goldner, an employment attorney in Bala Cynwyd, Pa.

“Unless there was willful misconduct, like [the employee] stole from you, I wouldn’t mess with unemployment compensation. That’s when you drive someone into the arms of a lawyer,” he said.

No letter

While telling your assistant why you’re firing him or her is recommended, putting it in writing is not.

Unless your jurisdiction requires it (and some do), it’s better not to provide the soon-to-be-departed assistant with a termination letter.

“If you didn’t word it just right, words somehow can be twisted,” said Pugh.

Most states recognize at-will employment, which doesn’t require cause for termination.

Another reason not to put things in writing is that your reason for the termination (say, theft) may turn out not to be true after investigation, or you may find other evidence that would have justified a firing (say, sending explicit e-mails).

“Why would you put something out there in writing that highlights that gulf [between the employer’s and the employee’s perceptions]?” Goldner asked.

On the other hand, it’s smart to paper your file with documentation of the reasons for the firing and any performance, attendance or behavior issues than preceded the termination.

“You should memorialize the basis for the termination in that employee’s file so you don’t have to rely on your memory or the memory of a disaffected long-departed employee,” said Kathleen Dillon Hunt, an employment attorney in Lacey, Wash.

However, be careful not to draw legal conclusions in your documentation, Hunt warned.

“If you write ‘I fired John for sexually harassing Jane,’ ‘sex harassment’ is a legal standard and what you’ve done is backed yourself into a corner,” she said.

Instead, stick to the facts, such as “I fired John for telling dirty jokes,” or “inappropriate conduct.”

If possible, especially if a male attorney is firing a female employee, have a witness present to avoid claims of any impropriety, Pugh suggested.

Fire fast, hire slow

If it’s best to fire quickly, the opposite is true of hiring.

Resist the temptation to replace your assistant with the first warm body, Jawitz said. Getting the right person will take time and training.

Some law firms “point to the desk and say ‘Here’s the copier, here’s our files. Good luck.’ They don’t train properly,” Jawitz said. He also suggested making it clear to your new assistant that he or she must complete a probationary period.