I’ve often pointed out that the modern trend in America toward loading more and more legal risks and obligations onto employers tends to have the presumably unintended effect of creating a disincentive to employ people, especially when there is any hint that an employment relationship, even if productive otherwise, might take on elements of conflict.
Don’t just take my word for it. Here’s an item I’ve been meaning to note for a while from the excellent lawyer‐blogger Eric B. Meyer of Dilworth Paxson in Philadelphia, who represents employers. It’s no longer brand new but has lost none of its relevance:
In the world of Human Resources, “hire slow, fire fast” generally holds true to avoid just about any lawsuit.
Meyer goes on to describe the case of a nursing assistant at a New Jersey senior living center who was written up for absenteeism, rules violations, and insubordination, and put on a series of supposedly final warnings and a “last chance” agreement.
Which is to say, the employer did not follow the maxim of “fire fast.” HR folks can probably guess what happened next: the worker filed a request under the Family and Medical Leave Act (FMLA), a federal law that 1) requires the employer to hold open a vacant job for an absentee under various circumstances and 2) lays out a minefield of ways the employer can incur liability if it then can be construed as having “discouraged” the request or “retaliated” against it. Much of the gamesmanship of employment law develops from doctrines like retaliation: an underlying claim of discriminatory treatment may be hopelessly weak, but retaliation will succeed in keeping the suit going. (When the Supreme Court very slightly narrowed liability for retaliation in this summer’s case of University of Texas Southwestern v. Nassar, the peals of anguish from the legal Left went on for weeks.) In this case the New Jersey senior center stepped on one of the mines: it proceeded to fire the worker based on a last‐straw‐on‐the‐camel further offense that others testified would normally not count as a firing matter by itself.
If you’re an employer in some region or industry where employees seldom sue, you may be able to offer lenient discipline policies with multiple chances in hopes of breaking the bad habits of an otherwise wanted employee. States like California and Massachusetts, which have laid out drastic legal consequences for employers whose workers do not get full lunch breaks, are also the states where you are likeliest to find seemingly draconian employer policies of firing or disciplining workers caught doing even a tiny bit of work over lunch.
Most experienced HR people I’ve met seem to find it easy to grasp the legal logic of “Hire Slow, Fire Fast.” Why is it so hard for elected lawmakers to grasp?