How to Lower Your Risk of Terminating an Employee with Marc Gross
Watch/Listen here or on Apple Podcast, Spotify, or wherever you listen to your podcasts“I believe as the leadership team goes, so goes the rest of the company. So if you don't have that consistent and significant sustainable growth, you've got some work to do.” — Mike Goldman
Marc Gross is a partner at Fox Rothschild, a national law firm. He specializes in business litigation, crisis management, and legal issues for diverse clients, including entrepreneurs, family businesses, and tech ventures.
Importance of Effective Communication
Strong leadership relies on open, honest communication without fear of reprisal.
Teams that freely exchange different opinions tend to make better decisions and progress more effectively.
Challenges with Poor Performers
Keeping underperforming employees can drain company resources and lower morale.
Leaders often hesitate to terminate poor performers due to fear of legal repercussions, particularly if the employee belongs to a protected class.
Documenting Performance Issues
Documentation: Critical for addressing performance problems effectively.
Maintain records of poor performance through emails, evaluations, or performance reviews.
It’s essential to document issues as they arise, not just during annual reviews.
Performance Improvement Plans (PIPs):
Clearly outline the performance issues, steps for improvement, and timelines.
Share the plan with the employee to provide transparency and set clear expectations.
Creating Effective Improvement Plans
The plan should include specific issues, strategies for improvement, and deadlines.
Providing the employee with a copy of the documentation helps protect against potential claims of discrimination.
Navigating At-Will Employment
In the U.S., most employment is "at-will," meaning employees can be terminated without cause.
However, legal challenges may arise if the termination appears discriminatory.
Documenting performance issues helps defend against wrongful termination claims.
Handling Different Types of Employee Issues
Different issues require different levels of documentation:
Safety Concerns: Immediate action may be necessary if the employee poses a risk to others.
Performance Issues: May require multiple documented warnings over a reasonable timeframe.
It’s crucial to adapt the approach based on the nature of the infraction.
Setting Clear Expectations and Core Values
Define measurable goals and non-negotiable behaviors (core values) upfront.
Clear expectations simplify the process of addressing performance issues and help align the team.
Importance of an Up-to-Date Employee Handbook
A comprehensive employee handbook is vital for outlining policies, including termination procedures.
Helps protect the company’s rights and provides a framework for addressing issues consistently.
Understanding the Legal Risks of Termination
Legal risks exist even when proper procedures are followed, especially for employees in protected classes.
Insurance (Employment Practices Liability Insurance) can help mitigate the financial impact of legal claims.
Providing Feedback During Termination
Approach termination discussions carefully, especially when dealing with employees in protected classes.
The explanation provided should be concise and align with documented performance issues.
Advice for Leaders
Maintain Clear Records: Consistent documentation is key to mitigating risks.
Update Policies Regularly: Keep employee handbooks current and include specific guidelines on performance and conduct.
Consult Legal Counsel: Having a knowledgeable lawyer on hand can help navigate complex termination scenarios and protect against legal claims.
https://www.foxrothschild.com/marc-j-gross
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Mike Goldman: Marc Gross is a partner at Fox Rothschild, a national law firm with more than three decades of experience. Marc focuses his practice on business litigation and the management of legal issues in crisis situations. He routinely represents a diverse clientele that includes entrepreneurs, closely held family businesses, automobile dealership dealerships, and real estate and technology ventures.
I've known him and referred him for man Marc I think it's at least 15 years now. He's done some,
Marc Gross: It's more than 15.
Mike Goldman: Is it more than 15?
Marc Gross: but I, that's my recollection. Somewhere between 15 and 20 years, you and I met.
Mike Goldman: We were both a little less gray when we first met. Well, anyway, welcome, welcome to the show.
Marc Gross: Thank you, Mike.
Mike Goldman: So today we're going to focus on some, some elements and especially one element of. Employee decisions and the law that has frustrated me for a long time. And Marc is either going to frustrate me more or clear things up for me.
Well, we will see. but first question I always ask lawyer or not. First question I always ask is Marc, from all of your experience with leaders, leadership teams, and in your own. For a partner in your own firms for many years, what do you believe is the one most important characteristic of a great leadership team,
Marc Gross: Wow. Okay. I think the big C communication, if the team can feel free to communicate with each other without fear, rejection, reprisals, mockery, you're going to have a great team. When the members of your team are able to provide different opinions, communicate that,your leadership team will generate decisions and take actions based on.
All different opinions of your team. And I think that's always helpful in terms of moving a great business forward in the right way.
Mike Goldman: beautiful.
And I'm sure as we move forward in the conversation, effective communication, I would imagine it's going to be one of the, uh. Anchor, characteristics that we'll probably talk about throughout, but let me, now I'm going to dive right into, to something that has frustrated me for many years, which is leaders.
Leaders that keep poor performers because they're very low in productivity, poor performers because maybe they're a very low culture fit for whatever reason, leaders who keep poor performers around too long. And when I see too long, a year and a half, two years, and their excuse is, I don't want to get sued.
So we can't let this person go. They're in a protected class. We can't let this person go. And it drives me crazy. So
Marc Gross: It's also a drag
Mike Goldman: help.
Marc Gross: on any organization, right? Some there's a view that you're only as good as your worst team member. And so keeping a poor performer around is going to bring everybody else down. Oftentimes suck energy out of the leadership team.
Mike Goldman: Yeah, I'm with you as you preach into the choir. So, so we're on so, so far, you're not frustrating me. This is good. I like it. but help me understand. Why is it that leaders feel that way? What is it that they're hearing? And maybe you could say what the hearing, and then maybe there's a different way to interpret it.
But what is it that they're hearing from their attorney? So I know we're just trying to protect them from a lawsuit. What is it they're hearing that's causing them to throw their hands up and say, well, I really just can't get rid of this person.
Marc Gross: So I can't tell you what and business owners are hearing from their other lawyers.
What I can tell you is advice that I give to my clients, and that is if you're having issues with someone on your team or any employee, let's move down the alphabet C for communication, but D document, document, document, document, or the three most important things like in real estate, the three most important things, location, location, location, and dealing with a problem employee with a problem employee.
It's document, document, document. if you have someone that is not performing in the way that you want. Document it in an email, in, in a review, in, in an evaluation. And it doesn't have to be once a year on the annual review. It should be when that poor performer engages in some conduct, take some action, or even an omission that flies in the face of the mission of your business. You've got to document it as a leader of that team with enough documentation, uh, after some period of time and every it's on a case by case basis, you can make a case that your termination of that employee is for a non discriminatory reason, but because of poor performance and you'll have the documentation to do it, to support it.
Mike Goldman: So let's dive into that and get really specific is so, so let's say I've got someone working for me that is, let's say it's a salesperson, let's take something that's easily measurable. I've got a salesperson. They have gone three quarters in a row, not hitting their sales goals.
I have. Tried to coach them without much luck so far. And I'm finally at the point where I'm like, maybe this is a bad fit when you say, document it. Now I actually, Advise my clients that annual performance reviews and quarterly performance reviews are the worst invention ever created in business, which is a whole separate topic.
But let's assume based on that, that this is not about some formal performance review, just at the point where I'm saying this just doesn't seem to be working. I've got to have a conversation, not a conversation to fire them yet, but a conversation, which is, Hey, let me let them know they're not hitting their goals.
and, you know, we may have to have a difficult conversation later. Whatever that conversation is. When you say document. If you're my employee, I sit down and have a conversation with you and I say, okay, it is November 15th, you know, at 4:10 PM. I had a conversation with Marc Gross, told him he wasn't hitting his sales goals, coached him on how he might do it in the future.
that's my documentation. Is that enough or is there some more formal way to document,
Marc Gross: start what you're with the entity that you're having the coaching relationship should do and it's not a sales pitch for me or for you, but Yes, documenting it to an HR file is the first step. You also should put some sort of writing together, either in a hard form or electronic, confirming the conversation that you had with that employee.
And often advice I give is to put together, an employee, some sort of improvement plan. And you want to. Okay. Put in writing the things that the employee is not doing failing on the issues and document what the employee needs to do a personal improvement plan in order to get up to speed and what the timeline is for that. that's the first step. And then the next step is when the employee fails. To meet those marks in the time frame set forth in that document. Now you have another meeting and you document that you documented with the employee, that they failed to meet these marks and you should,
Mike Goldman: well, let's go back. Let's go back. So, so this is good. This is helpful. So that first document. Which to your point is a little bit more than had a tough conversation with Marc Gross today, cause he's not hitting his sales goals, you know, more to come. And here's the date and the time it's what's that performance improvement plan.
When I do that and say, you know, here are the issues, you know, here are the three ways we talked about improving. And here's when I need to see the improvement by, is that enough? Do I need to now show my employee that This document and they now need to sign it, or is it enough that I've got it for my files that I've had the conversation.
Marc Gross: so first I should have said this at the beginning as a lawyer. None of this is legal advice. Every circumstance is different. Go see your lawyer. and what I'm telling you is not legal advice. okay. So with that being said, you can't rely upon anything that I'm saying. Uh, now, now, with that being said. It's great to have it internally memorialized. That's lawyer speak for written down somewhere in your file, in your HR file, but you should also give it to the employee. Some form of documentation confirming to the employee what you spoke about, what the issues were. God forbid there's a problem six months, two years, three years. Later, you're going to have now this document in the employee's hand and more likely than not, no response from the employee rejecting it or saying none of this is so it was made up. You're confronting me not because of my poor performance, but because I'm sort of class of person that is being discriminated against. And so a great thing to do, have your internal document, and that should also be very similar or perhaps the exact same as what it is you're providing to your employee. And you just keep a copy of that discussion. Your second question was, do you need the employee to sign it? Well, that's something beyond your control.
Sometimes employees won't sign it, won't sign it ever, not give it back to you. Don't plan on it. I don't like ever giving somebody the opportunity to sign it because then they can cross it out, reject things. I would provide them with the. Email or memo that confirms the discussion. Nothing to sign to come back again.
It's not legal advice. It has to be everything is on a case by case basis. Every situation is different. These are just general guidelines and some tips, I guess, on how to move forward. It's not impossible to fire a poor performer. It happens every day. And I would say, You know, it, it's at least once a month, maybe two or three times a month where we're getting that issue raised here.
How do I get rid of this, sales manager? How do I get rid of,of my CFO? How do I get rid of the president when, of the company, when it's a family business? and you know, it's the chairman of the board who wants to get rid of the president, or how do I get rid of. My receptionist, whatever it is, the skill set and what you have to do is the same. You must document it, provide the employee with a copy, set goals and a timeline and follow up.
Mike Goldman: And that's whether you believe they're in a quote unquote protected class or not,
Marc Gross: Whoever it is, just do it. It's good practice.
Mike Goldman: and I think that's where as logical as that is, and as logical as it sounds, I think that's the first place I see leaders fall down is not only in not doing that documentation, but more specifically, the reason they don't do the documentation is When I, if I have to sit down with an employee and have a tough conversation, I can do that.
But documenting that conversation and showing the employee, okay, here's the document, whether I'm asking them to sign it or not, Hey, I just want to make sure, You know, you've got what I've got. We've documented this conversation. I've asked you to do these things. Now, all of a sudden it elevates this discussion.
I know if I'm the employee and my leader sits down with me and has a tough discussion, we're going to have that discussion. I may feel like crap afterwards, but we had the discussion. I appreciate it. He had that discussion when he hands me a piece of paper and says, Here's the discussion documented for our records.
All of a sudden I may be dusting my resume off cause I'm starting to worry that I've got a bigger problem. And I want to hit that because we're, you know, I don't want to jump to the point and we will get there, but jumping to the point of now it's time to potentially make the decision to fire someone.
The problem is the initial discussion. It's not necessarily about, man, I have to have this discussion so I could fire them having the discussion because I'm having some issues with this employee
Marc Gross: The employee may improve
Mike Goldman: and
Marc Gross: as a result of the discussion. It may be an aha moment for the employee that they better get their, youtheir body in gear,to perform at the level that the business expects that employee to perform. It could be an awakening.
Mike Goldman: yeah, and I think you bring up the good point and the right point that is important when leaders. When a leader listening to this says, Oh God, now you've got to go from having a difficult conversation, which is hard enough. I'm multiplying it by three by now saying, here's the document. It makes it more serious.
And on the one hand, making it more serious, makes us nervous, makes it more difficult to do. But on the other hand, to your point, why not make it more serious to, to. Raise the challenge and raise the level of urgency for this team member to improve their performance.
Marc Gross: let me tell you one of the things that my dad told me many years ago, my dad was a serial entrepreneur, had a bunch of businesses. He would say, one of the worst things for an organization is to have illness from within with a bad partner, a bad shareholder, a bad employee at a senior or critical position, he would call it align it to like an incredibly sick patient cancer.
And either you have to treat it. Or cut it out. You've got to treat the cancer or cut the cancer out. If you don't, just get sicker and it drags down the patient. That's how he would analyze and analogize the business. So either you have to cure it or cut it out. And that's the best advice.
Although I'm not giving legal advice, but if I were, that's the best way that I would direct a client in that way. You have to
Mike Goldman: and I think, and as I think about this, Mark, what it makes me think about is I am, you know, I'm in the midst of writing my third book and part of what's in that book is the importance of being crystal clear with our team members as to what our expectations are of them. If it's a salesperson, how much new revenue do you want?
Do you want them to bring in? If it's a head of. Client service. What do you need the client retention to be? Let's get very specific and very measurable with expectations. And if we start that way, and if we create a culture of documenting expectations, documenting goals and actions that will lead to success, then it becomes almost natural.
Not almost, it becomes natural after a difficult conversation or in the process of having a difficult conversation to document that as well. And it doesn't feel so out of the ordinary, but it does exactly what we're trying to do. So you document that. So let's assume, so we have that. I have that conversation with my difficult team member.
I document it. It's now in the records in their HR file.
Marc Gross: And in your employee's possession.
Mike Goldman: right? Because we've shared it with them. So we've got that physically or electronically. We've got that document. Now they continue to not meet expectations. Let's talk about Timing, do I need, you know, six different write ups over 12 months is one write up enough and they, I've given them 90 day goals.
They haven't hit those goals. I don't think they could do it like, like how long and how often does this have to happen?
Marc Gross: It is a great question. But it really is a case
Mike Goldman: That usually means there's no good answer.
Marc Gross: always a good answer and there's a solution, but it depends on what the infraction is. If it's somebody who is threatening other employees, making other employees uncomfortable at work, fearing for their safety, we're talking about an abusive person in the workplace. That's going to be very different from somebody who's not hitting sales goals. If your sales manager or your. brother in law who's responsible for the sales of the business is abusive. You're going to need a different level of documentation, different timing, different amount than someone who's the brother in law who's not hitting the sales goals.
So.
Mike Goldman: when you say different, because one is very measurable. One is not, you know, if someone's being abusive, how do you measure that they're not hitting sales goals? You can measure that. Is that what you mean? Is it the measurable or is there some different differentiator there?
Marc Gross: is subjective. It's not a measurable thing when you go in front of, and no one wants to be there, either in arbitration, if you have an agreement with your or soon to be ex employee that disputes are arbitrated, or you're going to be in front of a judge, it's going to be how that third party, that fact finder is going to look at these set of facts. If you have the abusive or threatening, and I've had it on several occasions, dealing with one now, you have that abusive threatening who's a cancer in your organization, you're going to have a type of writing, different timeframe. You have a duty to your business, your employees, from somebody, and you have to act quicker if you have somebody who's not hitting sales goals, but it's not a danger to, to, to the safety of other members.
It's different. It's definitely on a case by case basis. And it's a feeling from doing this for in, in. From where I'm sitting, from doing it for literally, like you said at the beginning, decades, you get a feeling as judges or arbitrators will react to the set of facts that you're being dealt with.
And you have to be able to adapt your solution and resolution. that fits the problem. There's not one size fits all. There's not one solution. It's extremely fact sensitive. It depends on the employee, the class, the protected class, where a potential, the venue of any potential case or who might hear it. Is it a judge?
Is it a jury? Is it an arbitrator? What the issues are of that employee and all this has to go into the calculus. Does my documentation include interviewing other employees or other? Members of my leadership team and get them to sign statements about what this person is doing or failing to do again, this your documentation and the degree and how often and when to move to the next step depends on what's going on.
It will change.
Mike Goldman: How much does.
Setting expectations up front around behaviors. One of the things that a lot of companies have and that I work with my clients on is a set of core values and not aspirational crap. That's out on a website that just makes us look good, but true non negotiable behaviors. This is what our culture is all about.
These are our non negotiable behaviors. We're going to. Respect each other. We're going to lift each other up. We're going to take accountability. We're got whatever it is. Every company is different, but setting expectations on non negotiable behaviors, setting expectations on measurable results, whether it's a sales role or a finance role or an operations role, whatever it is, setting those expectations up front.
Does that make things any easier if it does come down? I assume that, but a lot logic doesn't always enter into the equation. So I thought I'd ask the question.
Marc Gross: instincts are right on this. It absolutely does. If you have core values, if you have your expectations, your job description, it's in writing and your colleague, shareholder, other member, partner, employee is not meeting these goals, these core values, the job description that makes your life. In terms of documentation or getting rid of this problem person or coaching the problem person to get a D or a C player to a B, it makes it a lot easier because everybody knows that you can't do this. Everybody knows that you have to hit this milestone. And if the person isn't doing it, everybody knows it.
It's easier to say this person was terminated, let go reassigned because this. Person was not meeting our core goals. The, these known objectives of the group, as opposed to this person was let go because they're too old or has a disability of some kind,
Mike Goldman: I know there's no one right answer to this and we kind of. I alluded to this a little bit earlier, but I want to hit it again because I think it's so important and such a frustration on the part of leaders I work with. And it's the idea of how long does it take? And I know there's not one right answer, but if I've got, if there is a leader who is, has got an employee that is underperforming, they've had the conversation, they've documented it, it's in the file that the employee has seen it.
a month later, they got together again, and said, Hey, there's no progress. You know, I need to see progress. We're documenting it again. A month later, it's the same. I mean, what is there some way to understand, Hey, do I have to document this 15 times over a year or twice over two months?
Marc Gross: or
Mike Goldman: How should we be thinking?
Or maybe once? Yeah.
Marc Gross: again, I know you're not going to like it, but the truth is it depends on the person, what the. what the class is that you're worried about in terms of discrimination, where that person is in your organization, what the behavior is, what the goals are. You know, typically it's not going to be once in terms of a writeup or writing.
And typically it's not going to be 15 times. it, it could be zero depending on the infraction that you're going to let somebody go immediately. if you find out that this employee has, Stolen or taken or misappropriated some sort of confidential information that you're going to let that person go right away.
If you haven't, I want to see your employee handbook, but there may be no warning and there may be. A half a dozen warnings over six months, if it's something like not hitting sales goals, it may be over six months or a year. So a path to do it that, depending on the person, the infractions, the circumstances, the goals, the core values of the organization.
Mike Goldman: And. What's the danger?
And again, I know there's not going to be one right answer here, But I'm going to give it a shot anyway, is what's the danger of getting this wrong? and it's probably going to be different whether it's protected class or not protected class, but what's the danger of getting this wrong?
And I'm asking for a very specific reason, because there are times I've had leaders. Just, you know, can't get rid of them. They're in a protected class and they're so worried. But this person month in and month out is wreaking havoc within their business. If they're already having an impact, they're losing maybe millions of dollars in revenue or productivity.
So when we think about. the ROI of making one decision versus another. And certainly the first course is do this right and document it. But what's the danger of getting this wrong?
Marc Gross: you can do it absolutely right, Mike, and still be subjected to a claim.
Mike Goldman: Yeah.
Marc Gross: And so whether you're right or wrong, you're, you might still find yourself on the other side of the V where you don't want to be, what can help deflect or mitigate that is insurance. There's insurance for this. And so I recommend it.
Businesses should get it. And, You know, it will defray the cost, diminish your aggravation and the risk involved for an enterprise if it has insurance on employment practices and you've got to work with counsel on it and make a determination. As to what the risk is, whether you have insurance to cover either fees or a settlement.
And, is it worth it to your organization? Do you need to get rid of the person in order to move on in a way that's healthy for your business? It's a calculus
Mike Goldman: And that
Marc Gross: many moving parts.
Mike Goldman: much more basic question
we are. and you tell me if this is every, if this is countrywide or maybe it's state by state.
But my understanding is. We, at least in New York and New Jersey, it is at will employment,
Marc Gross: This is typically nationwide
Mike Goldman: right?
Marc Gross: Yes.
Mike Goldman: That's nationwide. So help, help me to understand, because if I look at just the high level definition of that, it says, well, I don't need cause to fire somebody.
I can just fire them because I want to fire them. And I'm not suggesting people do that, but. When we talk about at will employment, and then we talk about the need to document, it feels like it's not really at will employment. So help me understand that definition and what it means and what it, maybe what it doesn't mean.
Marc Gross: you have an at will employment or you have an employee that has a contract. You can have a contract with an employee and it typically happens when there's a sale of a business where you'll have a contract with a senior person from whom you either bought the business from, or some of the senior team of the business that you acquired, and you'll have a contract to keep those people for a year, two, three years.
Those classes of people are not. Employees at will, you're obligated under a written agreement to employ these people for a duration of time absent something in writing like that. Typically, everybody else is an employee at will. There is another exception. there are some case, there's some case law that talks about shareholders in a closely held business and one of the reasonable expectations of a shareholder in a closely held business is the enjoying the fruits of the business and employment by the business.
And if you have someone who's a. Closely held shareholder and has been enjoying a senior role or a role of employment in the business. There might be some reasonable expectation to continue in that role. And although you have no employment agreement, I've been in cases where it's harder than you would think to terminate a shareholder who's also an employee. So I don't know if I've answered your question.
Mike Goldman: Well, you, so, so, so you've given me, you've given us the exceptions of where it's not at will, but where it is at will, which is going to be the majority of situations.
Help me understand that seemingly discon, seeming disconnect between if it's at will, why do I need all this documentation?
Marc Gross: you're dealing with somebody in a protected class, somebody might claim in the litigious society that we live in, that you're really being terminated, not because it will, or because you're doing a bad job or because of layoffs, or there's a business reason, but the only reason you're terminating me is because I'm In the protected class of a national origin, gender, some sort of disability age, and you're getting rid of me for a discriminatory reason.
That's unlawful. And you can't do that. You can't get rid of people because you don't like the way they look. You don't like the, you don't like the fact that they might be disabled. You don't like their national origin or ethnicity, their religion. You don't like it that they're now old and you can't fire people. for an unlawful reason, you can get rid of an employee at will if they're performing poorly, or if, again, if it's not a member of a protected class, you can fire that person without worrying as much as to whether you're going to be on the other side of a V and either be sued or have a claim against you in an arbitration.
Mike Goldman: but I want to take what you just said. You said without worrying as much
Marc Gross: Look
Mike Goldman: my interpretation of that. And I know you're not giving legal advice, but my interpretation of
Marc Gross: I've seen crazy things even with people who are not members of a protected class bringing claims against employers, their former boss that are out there, and,and that get resolved in the courts and people will come up with wacky things. in order to try and squeeze money out of a company.
And so you have to be careful. It's just where we are now in terms of a society. People can sometimes do sue or bring claims on small things, frivolous things. items, baseless issues and try and squeeze somebody out of a former employer and they might find a, an employment attorney who's willing to take a case on contingency, and then there's a very little investment by the former employee and an upside that makes it worth it. That's why you have
Mike Goldman: make clear that there's a reason for the termination. It's just the safest way to go.
if, and when you get to a point where there is a termination.
Marc Gross: Where are
Mike Goldman: Should
Marc Gross: coming from?
Mike Goldman: I was just fired and I'm trying to figure out what to do. If you get to a point, yeah, it doesn't say this isn't from real life, right? Like you, I hear this every day, Mike, it's complicated. We, I, this person's lost us 10 million over the last year, but it's complicated.
You don't understand. So I want to understand so I can push back on them. But the, when, and if you get to the point that you are terminating someone from the organization. And sometimes these are not necessarily jerks that you're firing, right? Sometimes they're really good people who you like that are just not, they don't have the capability to perform in the role that, that you'd like them to perform in.
Marc Gross: I'll give you another example
Mike Goldman: And well, hold on, let me, so, so the question, the question I have, yeah, don't you forget it. The question I have is when you are terminating that person. Especially if you like them, you're going to want to continue to let you want to let them know why this is happening. Right. You want to give them an explanation.
The same reason sometimes if you're not hiring someone that interviewed, people say, Oh, can I ask why? And people want to explain it to them. And I'm going to ask about that too, before we're done the hiring part. But if you're firing someone, should you now, of course, if you've done all the documentation, it should be obvious what's going on.
But when you fire someone, do you. Get involved in that discussion and give them a long description of why you're letting them go. Seems like the right thing to do, but is there something with that could actually get you in trouble or something when you're explaining it, you need to be cautious of so you don't get in trouble.
Marc Gross: Yeah. Okay. So I think the question is, should you provide your departing employee with a long explanation as to why you're letting that person go? And typically the response, especially if it's in a protected class is maybe It's on a case by case basis. I really would have to understand it. I'll give you an example.
A client of mine, sold his business and he went on to work with the acquirer. Some of the executive team. of the business prior to the acquisition was being let go. It's a very short explanation that the company has been sold. Your services are no longer needed, even to those who were in a protected class.
And it was there. that's just in that circumstance, how you would handle it. In other circumstances, if you have a more contentious and what you think might be a,a fight with that employee, advice would be totally different and it would be, something much more lengthy and itemized and referencing all of the other. prior, memos, emails, documentation, incorporating those by reference, setting it forth in bullet points, the reasons for letting this employee go again, it depends on the employee, the circumstances, the concern about what protected class, where we are, what state we're in,what the alleged infractions are, the reasons for letting that person go.
And then we would. Work with that client in helping draft the termination letter.
Mike Goldman: Is there anything else we haven't talked about again in this whole theme of I've got an employee that's underperforming? and there is a chance I may have to let them go at some point. Is there anything else we haven't talked about that leaders often do? Ought to keep in mind so they can do the right thing for the company.
the right thing for the employer, even the employee that, that may be getting let go or having an issue for anything we haven't talked about that leaders ought to be thinking about.
Marc Gross: Yes Having a helpful employee handbook that is up to date with rules regulations policies including policies relating to termination Some what the core values are, the expectations for all employees. I have one, I, a client where we had a hygiene policy and we were able to let somebody go because of violation of the hygiene policy, there should be,
Mike Goldman: hold on. I got to stop you there. You can give me more details on that. Did they smell or what? What was the,
Marc Gross: into the details,the client was involved in a business where hygiene was important and, there, we included a hygiene policy in the employee handbook. And when someone violated that policy, they would get a warning and a period of time to improve. Because it could hurt the client's products and services. And if you didn't approve, you would be warned several times over a period of time and then let go. And if there's a claim because, okay, you fired me because I'm a member of a protected class and not because I violated the policy or any policy we would have. Witness statements, warning letters, over an extended period of time that this person violated a company policy, had ample time to improve or change and did not, and we had no choice, but to let that person go,
Mike Goldman: what I really wanted, Marc was the juicy details of
Marc Gross: not going to get it,
Mike Goldman: I'm.
Marc Gross: sorry, you're not going to get it.any, almost every imaginable circumstance I have dealt with.and it's just a discussion, maybe for over a drink and not a podcast
Mike Goldman: All right. and don't worry my audience I'll after I get Marc drunk, I'll come back and share with you what the answer was,
Marc Gross: having a up to date employee handbook that would help a business go about, protecting its rights, retrieving back from the departing employees, a company laptop or cell phone or client list,what the policies are, what the routine is when you let somebody go, what the process is, what the reasons would be for what constitutes a termination, setup. That is extremely helpful. I can't tell you how often I'm surprised when, clients come to me, particularly new clients who are referred to me and they don't have an employee handbook and they got a problem. So sometimes what we advise is we put the, put an employee handbook together. With targeted policies, get that issue to employees. And then, you know, a month or two later, start the documentation process.
Mike Goldman: and I would imagine the other thing, and this is where I thought you were going to go.
Being the great sales guy I know you are is the one thing we haven't talked about that you need to think about is having a good lawyer.
Well, I would, yes, for sure. But, you know, every client that I've ever had, has always had another lawyer before they hired me. But I said a good lawyer.
Marc Gross: that's the only pitch I'll make. I mean, there are lots of lawyers and it has to be a good fit. every lawyer should fit well with the business and, you know, relationships are everything.
Mike Goldman: Talk a little bit more for those that are interested and I'm sure everyone that listened, especially if they're still listening, they, they got that. if they, Yeah. If they didn't get value, they're probably not listening to this anymore anyway.
But for those still listening that got value, talk to us a little bit more specifically about your practice, the kind of folks you help, the kind of work you do.
Marc Gross: Okay. So, I mean, you've mentioned it a little bit at the beginning. I'm a business lawyer. I have, my firm has 30 offices. I have a national practice. I have cases in Florida, in California. I've tried a cases in Vermont. I've had appearances as lead counsel in Alabama, Knoxville, Tennessee. I can go on.
Obviously the core of my practice and probably more than 80 percent is New York and New Jersey, and it's strictly a business practice representing businesses, entrepreneurs, business owners, and. Every imaginable problem. I get phone calls, starting usually, around seven in the morning till You know, after 10 o'clock at night, my clients become my friends.
My friends are my clients. and you know, when you're representing somebody that you have a close personal relationship with that's a friend, there's a different level of satisfaction. There's a different level of motivation to help solve that problem. And it is fast and as hard as possible in a cost effective way for the client.
And that's what I look to do particularly at this stage of my career. I like to represent. those entities with whom I can develop lifelong relationships with somebody that's, that we're going to have a lifelong relationship with, and that's where I get the most pleasure of solving the problems for people that I like.
Mike Goldman: And he does without giving away any details. I brought him in a number of years ago to a client of mine that was having an issue and the magic, he worked with the magic. You worked. I'll talk to you, not the audience. The magic you worked on that was pretty incredible. And we both know what I'm talking about.
That had nothing to do with nothing to do with hygiene. As far as I know,
Marc Gross: in that case,
Mike Goldman: where should people go? People want to find out more about you, more about Fox Rothchild. Where should they go?
Marc Gross: can Google me, Marc, I use a middle initial, but I'll still pop
Mike Goldman: Mark with a C.
Marc Gross: M A R C. Marc gross. G R O S S. You'll Google me. You'll find my bio, my contact information. I prefer I'm an old, I'm an old fashioned guy. So I prefer a phone call over an email. You just call me and I'm happy to talk meet.
I like to meet everybody. That I'm representing, I had a client in San Diego. I flew out there to make sure I met them face to face. That's just how
Mike Goldman: Oh, you poor guy. You had to go to San Diego. Oh,
Marc Gross: in the morning. You come back that same day. It's, but I like to see and sit face to face at some point with everyone I'm representing. And so I would just urge, you know, just. Call me. Let's talk. Let's meet. Let's see if it's a fit for both of us. And, I'll do my best to zealously represent your interests.
Mike Goldman: beautiful. Well, Hey, thank you for answering some of the questions. You know, it's, you're a lawyer. You can't answer every, you know, there's a, there's too much gray area, but that's why you get paid so much to do what you do.
Marc Gross: it, none of the thing that I said constituted legal advice and don't rely on
Mike Goldman: Yeah. So in other words, if you're still listening, forget everything you heard on this podcast.
no, but Mark, this was great. I always say, if you want a great company, you need a great leadership team. This stuff is a really big part of it. So, Mark, thanks for helping us get, get there today.
Marc Gross: My pleasure. See you soon, Mike, over, over some pancakes and eggs for breakfast.
Mike Goldman: Absolutely.