Post a new topic
    21 Replies Latest reply on Feb 4, 2009 12:31 PM by coachjudy

    Should I fire him or lay him off?

    glendagax Newbie
      Hi everyone, im new to this site and honestly im looking for some advise.

      I own a small Glass Shop. Its just myself, my husband and 2 employees.
      Right now..our income is so bad, I had to get a second full time minimum wage job just to help out with expenses.
      Heres my issue, im definately going to have to layoff one of my guys.
      Jay has been with us longer than Tim. About a year ago..Jay installed a glass rack on his truck, obviously he's doing work on the side, wich I have no problem with. However, MY customers have come forward and told me that hes been handing out HIS business cards around our town or when hes sent out to do estimates, he hands them to our customers claiming he can give them better pricing. I find this very unfair, but I have NOT mentioned it to him. He used to be a very good employee, hardworking, quick and efficient,. Now he can take up to 3 hours replacing a small window, something tells me hes using our time and gas to handle his personal jobs, although I have no proff of this. This guy has a history with suing people over nothing,his father and brother both have sued prior employers also, wich is why I have avoided any type of confrontation with him. I would really love to get rid of the guy since he is not as efficient to my company as he used to be and right now with our business being so slow id rather keep our other employee, whos payroll is 2 dollars less than Jay's. Is it legal to layoff one guy and keep the other? Do I have to give him prior notice? Im afraid if i give him notice, that will give him time to make up an excuse for a lawsuit...backpain, falling, accident, I dont know...anything is possible. I dont know what to do.
      Is it better to fire him because of what hes doing or lay him off because of the financial difficulty?

       

       

        • Re: Should I fire him or lay him off?
          johnpaint1 Wayfarer
          I'm sorry but some of this is your falt. When you see things like this starting you have to talk to them about it, now you have let it go so long he has lost respect for you.As far as being legal, I can't speak about that, but if you have to lay people off, you have to lay them off, the goverment still doesn't run that much of our lives.You sound like a very nice person, but a easy push over too, stop letting you employees run your company.Put it like this, if you like this guy do him a favor and let him go, this really has gone too far. you will be doing him a favor.Hope this is not too hard to take but you have a fam too.Thanks John
          • Re: Should I fire him or lay him off?
            Iwrite Pioneer
            Firing or termination is more of a job performance issue while laying off is more of an economic decision.

            I think whatever you do, you need to start by documenting everything. Some of your decision depends on your city and state, each state has different employment laws. Contact an attorney.
            • Re: Should I fire him or lay him off?
              Lighthouse24 Ranger
              The most important factor in determining what's "legal" is where you are located -- and you don't mention that. Your business is small enough that most federal employment laws wouldn't apply to you, but state and local laws would.

              If your jurisdiction would consider it an "at will" employment relationship, then the bigger issue probably isn't what's legal, but rather what course of action will cost you the least money in the long run. For instance, laying him off could cause your employment tax rate to go through the roof, while firing him for misconduct might not (if you can prove it). On the other hand, if you can't defend firing him for misconduct, then the least costly course of action might be to state that business is bad and that you may have to close shop, cut wages, or other radical measures -- but you are also considering a voluntary separation (you offer a couple weeks pay in exchange for him signing a waiver that says he is leaving by choice).

              As suggested already, consulting an employment attorney would be well worth it (but be sure to choose one who specializes in defending employers, not former employees!).

              Good luck!
                • Re: Should I fire him or lay him off?
                  Lighthouse24 Ranger
                  Oops, I meant to write "unemployment tax rate" in my post above (to clarify, employees who are terminated for anything other than serious misconduct are entitled to collect unemployment in many states, and for a small company, that can radically increase the unemployment taxes they'll pay for the next several years -- so an employment attorney who represents employers will not only keep you legal, he/she will know how to keep your unemployment tax rate from increasing).
                • Re: Should I fire him or lay him off?
                  Bridge Navigator

                  Maybe your income is so bad because your employee is stealing your customers!

                  Think about all of the customers he solicited that DID NOT call you.

                  Start documenting everything. See if one of your customers can give you one of your employees business cards, take a picture of his truck, document his time versus your other employee, take notes of who/when you received calls from customers, etc.

                  AND talk to a good labor employee.

                  If you had been performing performance reviews regularly, you could probably fire him with cause but it does not appear this is the case so invest a few buck with a good attorney to resolve the issue.

                  Best of luck,
                  Greg
                  • Re: Should I fire him or lay him off?
                    WarrenD Adventurer
                    glendagax,
                    All the others were right, document everything, and see a attorney. When it checks out with the attorney fire him. He's taking business from you, and he's doing it behind your back. Do you trust an employee like that?

                    If you find out you have the right to fire him, and you don't have the heart to fire someone. Hire me for a day as manager, and I'll be glad to fire him for you. I'll quit the next day. Problem solved.

                    Warren
                      • Re: Should I fire him or lay him off?
                        Iwrite Pioneer
                        I know I shouldn't be but I am laughing over that one!! And I know Warren is serious. Classic.
                          • Re: Should I fire him or lay him off?
                            glendagax Newbie
                            Thanks alot. I appreciate all the feedback, and yes my original instinct was to hire an attorney for advise and help in resolving this issue.
                            We are in California, im not really clear about the laws here. I have tried to get "my" customers to come forward, suggesting maybe a written statement, but no one wants to bother or get into problems. Like I said I have no specific proof.
                            But i know...we all know! Im going to take the advice and hire an attorney..I cant really afford it, but I think its well worth it in the long run. I'll consider it an investement to our future.
                            I can definately do the laying off..Im so tired of it.
                            I have not documented anything so far. But i will begin as of today, that way I dont walk in empty handed to the attorneys office.
                            Again thanks for all your assistance, its greatly appreciated.
                            Ill keep you posted =[
                              • Re: Should I fire him or lay him off?
                                Bridge Navigator
                                In the meantime, if business is slow, be sure to give him additional duties to keep busy, such as sweeping the floor and cleaning the company cars, machine maintenance, bathrooms, etc....
                                • Re: Should I fire him or lay him off?
                                  Iwrite Pioneer
                                  I'm sorry, I must have missed something - is this employee getting paid for the time slot where they have asked not to be scheduled? If so, then they should be in the shop if they are not working or is your business structured differently and you only call them in when you need them? It is with in your rights to check on your employees. How do you know what type he or she is doing? I believe in ride-alongs as part of training, not only to gather information but to make sure things are being done to your standards. I would start performing spot inspections to show both the client and the employee you are involved and concerned. You may be doing this already and if you are great! I didn't mean to imply that you weren't.

                                  Don't forget about doing exit interviews with clients to find out why they are leaving. It is a great way to figure out why you are losing clients and shows that you do care. Keep the questions to 3-5 easy to answer questions, and don't try to defend or dispute anything said, listen, take notes and thank them. If you feel follow up action is required wait a day and send a thank you letter, then another day later send a coupon. I like keeping the gift and the thank you separate, others may feel differently. It is a matter of opinion.
                                  • Re: Should I fire him or lay him off?
                                    nouveau Newbie

                                    Hello,

                                    In the future, I would advises putting your employees under a contract that states a non-solicitation/non-compete clause.
                                    This will basically state he can't go after your clients or hire your employees. In addition, put him under a Non disclosure agreement.
                                    This mostly acts as a deterrent.
                                    Unfortunately, in California this is difficult to enforce by law.

                                    Here is an example:
                                    Non-Solicitation/Non-Compete: During the term of this agreement and for a period of 2 years subsequent to the termination of this agreement, employee shall not, without the prior consent of Company X, directly, indirectly, or through any other party solicit business from or perform services for any direct or indirect Company X customer or any other prospective Company X customer whom employee had any contact with or exposure to at any time during the term of this agreement."

                                    Here is another potential solution.
                                    1. Definitely fire this employee. This is a very disloyal act.
                                    2. Check in with all your clients regularly. Clients will look at this as an incentive.
                                    3. Make sure your customers are happy with the service at the end of the project.
                                    4. Coincides with 3. Always request feedback from your clients and employees in person at the end of a project. Take note of their verbal and physical response.

                                    This can help you refine your services and build the respect from your employees.
                                  • Re: Should I fire him or lay him off?
                                    WarrenD Adventurer
                                    That's cool if you were laughing, but alot of people did. My intentions were honorable, because I know alot of people who can't fire somebody, and if its just I have no problem firing somebody.

                                    Shoot if I read it in some other post I'd probably Laugh too. So no foul

                                    Warren
                                • Re: Should I fire him or lay him off?
                                  drterrilj Newbie
                                  You should lay him off ASAP! Hand him a pink slip with his next paycheck. Then post an add in the local trade schools and colleges offering an internship to those students that are studying in the field. By during this you would avoid all the legalities. I have been in Management for more than twenty years; if you don't address this matter soon it will only get worse.
                                  • Re: Should I fire him or lay him off?
                                    5StarHR Newbie
                                    Hi Glendagax,

                                    One additional suggestion: I strongly recommend drafting a non-solicitation agreement which all of your employees must sign - preferrably right when they are hired. This will set clear guidelines and give you a legal foundation, should any disciplinary action be necessary in the future.

                                     

                                      • Re: Should I fire him or lay him off?
                                        Lighthouse24 Ranger

                                        In one of the posts, Glendagax states that the business is in CA. I was thinking the CA Supreme Court ruled (sometime last year?) that non-solicitation agreements are illegal out there . . . am I mistaken/confused about that?
                                          • Re: Should I fire him or lay him off?
                                            5StarHR Newbie

                                            Good point. California Supreme Court ruled last year (8/7/2008) that "post-employment restrictions on an individual's ability to solicit a former employer's customers are invalid under Section 16600 of California Business and Professions Code."

                                             


                                            So to clarify: If Glendagax decides to put the non-solicitation agreement in place (which I still highly recommend), it should be for the duration of employment only. I would think that given his current employee issues, it would still be beneficial.
                                        • Re: Should I fire him or lay him off?
                                          MyBusCanHelp Wayfarer
                                          Before you make any decision, you should fine out what your rights are and what could happen from a legal point of view. As business people it can get real expensive keeping a lawyer on retainer. But I found a way to get my questions answered without having to pay just to talk to a lawyer and the great part about the plan is that for self employed people it cost only 49.00 a month that's about $1.64 a day for peace of mind. There is also coverage for people trying to sue you for nothing. If you would like more information visit www.prepaidleal.com/hub/mjdistri Click on business plans.l
                                          • Re: Should I fire him or lay him off?
                                            coachjudy Newbie
                                            Hi. You are getting great advice and let me just throw my two cents in.
                                            1. Document any FACTUAL information you have about his performance. If you have to justify why you let him go rather than the other person, this will help.
                                            2. It sounds like you can justify letting him go as a position elimination situation because of slow business. So you are reducing your workforce by one person.
                                            3. California has the most laws to protect people, so I agree that checking with an employment attorney is key.

                                            In the future when business is better and you are hiring again (I am an optimist!), make sure you have each employee sign an "at will" agreement when you hire them so it will be easier to let them go when you have to. Also, make sure you do performance reviews annually so you have documentation of good and poor performance. It is imperative that you give your employees feedback on a regular basis. If you have concerns about confrontation, work with someone who can help you deal with those issues more assertively and with more comfort.

                                            Best of luck with your business.