I can't quit, you're firing me
March 25, 2014 9:00 AM   Subscribe

My job is trying to counsel me out for "performance" issues. I think this is unjustified, but either way, the relationship is over. How do I position myself to end my employment on the best terms for me?

I'm working on consulting a lawyer, but in the meantime I wanted to solicit any advice here, especially if anyone has any first-hand experience that might be relevant.

I have worked for my current company (and supervisor) for 6 years. My supervisor is a psycho, but I've generally been able to work around it. I have always been given good reviews for performance, positive client feedback, received promotions, and was even asked to stay 4 years ago after I tendered resignation when I moved out of state. I've been working remotely since that time.

In February, I was given some negative feedback on a performance review regarding deadlines and communication. There were some specific unique projects in late 2013 that did not go as they should have (though all were ultimately successful); I attribute this to poor management, but had already put on my grown-up pants and made plans to change how to handle similar projects in the future prior to my review, so it wasn't a surprise or something that I disagreed needed a change (basically that I would have to step up to be more autonomous on project management in the absence of my supervisor being able to do it effectively).

Fast forward to today, I suddenly got a "final warning" from my employer, specifically outlining several instances where I was showing "unacceptable performance" mostly with regard to communication; the examples given seem bizarre to me (accidentally talking over someone on a conference call, having a meeting run longer than expected) and my supervisor claims they were all raised unsolicited which has freaked HR out (and I sincerely doubt; one of my biggest qualms with her is that she is a fervent liar - even about objective things like telling clients that the company has experience that we don't, etc.). I was specifically told, both during my review and during the "final warning" meeting that the comments in my review were not a Performance Improvement Plan so I have no idea how they believe this to be the next step. I also let them know that I had been working on improving as in my review and I thought I'd made the progress identified.

I expressed, both in the "final warning" meeting and the review comments which I submitted Friday afternoon (and then got this warning on Monday night with my supervisor claiming she had not read my review comments yet) that I believe I am a competent worker (plenty from my boss in my review to support this) and I am willing to do whatever the company needs from me, but I need to gain an understanding of what those demands are in order to meet them if I'm not. So far all I've been provided is that I need to meet all deadlines (? I have a very "professional" ambiguous job and have raised this multiple times as being unclear) and improve communication.

I was instructed, in both my review and my "final warning," that I should consider whether I want to work for the company. I have assured them that I do, but I think that's not the answer they're looking for. I think they want me to quit. (My boss's shit list is pretty serious - she initiated termination proceedings against 3 of 5 employees who left the department since I started; the other 2 left employment due to emotional issues and took time off from work. I'm very familiar with all of these because she had me put together a lot of the "Performance Improvement Plan" paperwork and citations. "First they came for the..." I guess.)

At the end of the day, I'm going to say all this probably means that my employment relationship has become unsalvageable and I need to cut bait.

This whole thing boggles my mind because, while I don't think I don't have room for improvement in managing communication or deadlines (both such rudimentary skills that I don't see how they could claim I don't have them given how long I've worked here), I know I'm an excellent worker and I'm committed to doing well. But at this point it has become political. So, okay, fine, I'll leave. I can't make them think I'm being reasonable.

I've been reviewing some websites and reached out to several lawyers to initiate discussions and I'm guessing my best case scenario is a severance package. What should I ask for? What should I look out for? What should I make sure to mention to the lawyer? What can I expect?

I have both a very large amount of PTO accrued and commissioned sales so I'd hope I'd at least get remuneration for those plus the whole "I can claim I still work there for a while and they will give me a positive reference" thing. It seems abundantly clear to me that a severance package would be warranted given a lot of the history, but anything in particular I should make sure to cite? I am concerned I'm too emotionally close to this to see clearly.

In the "final warning" meeting I mentioned that I had previously been diagnosed with and medicated for ADD (which I was in high school along). I actually had already set up an appointment (for tomorrow) with a psychiatrist a while back to discuss this again. I hadn't informed them before of this diagnosis because I don't want to create biases and wasn't requesting special diagnoses, but given the feedback I thought it was appropriate now. At the end of the day, I don't think this is about me having ADD or being depressed, but I'm willing to leverage those as protected classes if it's useful.

Thanks for any help! Throwaway email is bestofabadsituation@gmail.com
posted by anonymous to Work & Money (19 answers total) 3 users marked this as a favorite
First of all, don't be bullied into quitting. That will make collecting unemployment a LOT harder.

You are in the catbird seat, they want you gone, and at this point, you WANT to be gone.

1. Start looking for a new job in your area.

2. Counter-propose, with your supervisor, copying her manager and HR for an extended exit. Negotiate payments for your outstanding commissions, and severance pay, also, have them say you were laid off, rather than terminated. This will preserve your ability to collect unemployment.

I wouldn't bother with a lawyer, while you may have a case, it's just keeping you mired in a bad situation, with people you don't like. Screw that.

Dust off your resume and start checking out Linkedin.

Your narrative when seeking a new job is that you agreed to work with the company, as a favor to them when you relocated. You're now looking for a position where you can have more responsibility, and that just won't be possible at your current company.

Don't take it to heart. We've all had this kind of shitty situation happen to us. We survive it by realizing that THEY'RE the fucked up ones, and that normal, nice people don't flourish when surrounded by crazy.

Besides, aren't you ready for something new?

Good luck to you!
posted by Ruthless Bunny at 9:09 AM on March 25, 2014 [19 favorites]

Best answer: Oh! I forgot, standard severance is two weeks pay for every year you've been there. So ask for 6 months severance, be satisfied with 3 months.
posted by Ruthless Bunny at 9:09 AM on March 25, 2014 [5 favorites]

None of us are in your office nor did we participate in these meetings, so any speculation on if your termination is justified or not is just wild ass guessing. But something you wrote jumped out at me, and I want to flag it:

I don't think I don't have room for improvement in managing communication or deadlines (both such rudimentary skills that I don't see how they could claim I don't have them given how long I've worked here),

Statements like that indicate to me that you probably have performance issues that you're completely blind to. Everyone can improve their skills, even in "rudimentary" areas (of which communications is most assuredly not one).
posted by NotMyselfRightNow at 9:10 AM on March 25, 2014 [1 favorite]

Side Note: Don't ever mention the word 'psychiatrist' or 'medicated' again when dealing with an employer. I have made that mistake myself in the past. But 99/100 times you say "I'm working on this, I have been diagnosed with ADD in the past and will follow up." They will hear "I'm crazy and have mental issues. I'm just totally fucked up in the head and will probably ruin your business and sue you if you fire me"

Tragic, unfortunate, but true.
posted by jjmoney at 9:15 AM on March 25, 2014 [15 favorites]

Best answer: Find anywhere in the employee handbook where the company describes their approach to performance issues, severance, PTO after employment ends, etc.

Whatever's in there is not the maximum you could get if you have a great case (who knows), but consider it a minimum.

If they offer you less than what's in the handbook, be ready to calmly and reasonably cite chapter and verse.
posted by Bentobox Humperdinck at 9:18 AM on March 25, 2014

The following assumes you are in the United States and are not employed under a contract. This is a statistically likely assumption, which I feel comfortable making.

These are the key points that matter to you, in order of precedence:
  1. Your employer wants you gone. Your employer would rather have you quit than fire you, as it reduces the amount of paperwork they have to do, minimizes their liability, and keeps their unemployment insurance rates lower.
  2. Take the hint and find a new job. Your employer will get rid of you one way or another. They are giving you the courtesy (yes, courtesy) of telling you that they are doing it, so you should use the time they are giving yout o find a new job.
  3. You should not be planning on how your company will fire you. Thinking about a lawyer and severance plans and the like is a distraction from what you need to do right now, which is to get a new job.
  4. As I feel compelled to note in these questions, getting a lawyer is silly. Unless you have very uncommon employment agreements, your employer does not need a reason to fire you. Further, if you do use a lawyer, you will never be employable again because employers don't like litigious employees - they are too expensive and not worth the risk.
On preview: standard severance is two weeks pay for every year you've been there

There is no such thing as "standard severance". At least in my experience, "generous" severance is one week per year up to 10-12 weeks. "Normal" severance is ~4 weeks notice and ~4 weeks more of benefits coverage. I think this is highly location and industry variant.
posted by saeculorum at 9:28 AM on March 25, 2014 [6 favorites]

Best answer: Notmyselfrightnow, I think the double negative confused you. The statement reads [paraphrased] "I do think I do have room for improvement in communication and deadline skills, but I have shown I have above-average skills over several years employment with never a complaint before now". So, the OP was agreeing with you that they are not perfect and there is always room for improvement, but neither are they complete slouches either.

OP, labour law is very jurisdiction-dependent. If you give your location there may be laws/rights you are not aware of. In case your employer pulls the trigger unexpectedly, make sure you have a way to contact friendly co-workers/clients outside of the regular business line.
posted by saucysault at 9:34 AM on March 25, 2014 [3 favorites]

You've gotten great advice so far. I just wanted to add this:

At the end of the day, I don't think this is about me having ADD or being depressed, but I'm willing to leverage those as protected classes if it's useful.

Do not leverage your mental health issues against your employer unless you are confident that these issues have actually affected the way you're treated at work. Using your diagnoses to your advantage without just cause would be unethical (at best).
posted by schroedingersgirl at 9:57 AM on March 25, 2014

Best answer: Would the fact that I am a "litigious employee" follow me? How would people know?

Background check. Any lawsuit you file will show up in a public records search.
posted by desjardins at 10:28 AM on March 25, 2014 [1 favorite]

Would the fact that I am a "litigious employee" follow me? How would people know?

When they check your references, they'll find out.
posted by KathrynT at 10:46 AM on March 25, 2014

I can't imagine what's in it for them to agree to arbitration or mediation. You have zero leverage, unless you've really left something out. That said, I guess you can go get a free consultation with an employment lawyer to see if you have any kind of case at all, but I agree with the comments above that this is a waste of time.
posted by desjardins at 10:48 AM on March 25, 2014

Best answer: If they aren't following their own procedures as written in the handbook, they may be liable for something. You can always bring up that point in your discussions with HR (without actually retaining a lawyer or filing a suit). If they are really fearful of litigation, that may give you the upper hand you need.

It's not clear whether you've actually spoken with anyone in HR - it sounds like you've received several years of glowing reviews followed by a couple negative reviews and now this "final warning" all from your supervisor.

I suggest contacting someone in HR. Without getting emotional, describe the problems you see in the process:
1. Your supervisor gave you a "final warning" without reading or discussing your formal review comments first, and especially with no time to actually address or correct these issues in your ongoing work.
2. Your supervisor isn't following the published procedures from the handbook - i.e. there was no PIP in place. Not following published employee disciplinary procedures may open them to liability.
3. Your promotion came with new responsibilities that were never communicated to you, so it's hardly fair to hold you to standards you weren't aware of. (if you have past emails showing that you asked for the new job description, that will help your case).

In the end, it's usually up to HR to negotiate severance packages anyway - so don't go back to your supervisor at this point. It's probably fine to say to this person something like "I can see that [supervisor] no longer has enough confidence in my ability to do my job to keep me around, even though I disagree with that assessment as well as the incorrect procedures he followed to arrive at that conclusion. I want to make sure I am fairly compensated for the work I have already done (i.e. commissions) and the loyalty I have shown the company over the past six years. If it really is in everyone's mutual interest that I move on, please propose an appropriate package for me to evaluate. I'm willing to forego any formal complaints or other proceedings if I am fairly taken care of during my exit."

This puts you in the driver's seat - they have to come back to you with a severance proposal which you can either counter or flat out refuse. Decide what is fair, and negotiate hard for more than that. If you land somewhere close to your ideal package, take it and walk away.

Also note - severance packages don't disqualify you for unemployment in most states. So make sure you don't sign anything that could be construed as your resignation. You are taking the package as compensation for THEM letting YOU go.
posted by trivia genius at 10:50 AM on March 25, 2014 [24 favorites]

This is exactly how you should handle this situation.
posted by Ruthless Bunny at 11:01 AM on March 25, 2014 [1 favorite]

Best answer: A useful bit of information would be if you ever plan on working again. The following assumes you do want to work after this job.

Negotiating a severance now starts a timeline for your exit. The moment you are terminated, you have two problems for future employment:
  1. You are unemployed. Employers don't like to hire unemployed applicants, as those applicants are, rightly or wrongly, viewed as "unclean" in some way (because otherwise they wouldn't be unemployed.
  2. Unless you are able to convince your current employer to say otherwise (which is entirely possible), you run the risk of having to reveal you were terminated involuntarily, which doesn't help your employment prospects either.
Consider your end goal. Your end goal is not a severance package, it's another job. Anything that makes your end goal harder to achieve is not in your best interests. Suing your employer doesn't help your end goal. Negotiating a severance package doesn't help your end goal, because you are openly saying you want to be terminated, accelerating your employer's schedule (hence, leading to problems 1 and 2 above). The way you get to your end goal is by starting to look for a new job now, with as much effort as you can manage while still retaining your current job.
posted by saeculorum at 12:43 PM on March 25, 2014 [1 favorite]

Employee protections vary A LOT from state to state, so I'd actually strongly advise you to consult an attorney who specializes in employment law. That can be done confidentially (potential employers need not know unless you ultimately choose to take legal action), and likely for free (I have an attorney sibling who specializes in wrongful termination litigation and he does free initial consults, so I don't think that's an uncommon practice).

Whatever you learn, a consultation would at least give you some confidence going forward that you're taking the best steps to protect yourself.
posted by helpthebear at 12:52 PM on March 25, 2014 [1 favorite]

Best answer: Having a lawyer can help a great deal, even without needing or wanting to go to trial. Most importantly, they can give you a knowledgable review of any offer of severance the company gives you. Secondly, they can provide specific advice on leverage you might have wrt policies no being followed etc...

HR is in opposition to you here: they represent the company. Their goal is you gone with a minimum of disruption, hassle and risk to the company. They are not in the mix to help you. Your own council gives you a specialist advisor who can review their offers and keep you from risking your own continued benefits, like unemployment. Your goal should not be to sue, in my view, but to come out of the negotiation with the best package which does not cause damage to your unemployment or future job prospects, as being fired or quitting might do.
posted by bonehead at 2:16 PM on March 25, 2014 [1 favorite]

Talk to a good employment lawyer for an hour, not to sue, but to understand your options. Expect to pay $300-500 for the privilege. They should go through a checklist of things that your employer should or should not have done, some of which may be useful in negotiating an exit.

In any case, the lawyer may also tell you "this is totally legal, take what they're offering" or "oh my god, this is outrageous because X, Y, and Z."

It'll probably be the former, but at least you'll have peace of mind knowing how to proceed.
posted by zippy at 5:03 PM on March 25, 2014 [2 favorites]

I see that I'm late to the party, but want to tell you that I was in a very similar situation a few years ago. I negotiated a termination that enabled me to collect unemployment. We both knew it was not working after 3 years, and that the job was going in a direction that no longer fit my skillset.

Basically, I told them I would leave by "mutual agreement", but my only request was that they would not contest my unemployment filing. They kept their end of the bargain and I was able to collect UC for a few months until I found another position. I was quite lucky, and I still have a good relationship with the owners of this company. YMMV.
posted by sundrop at 7:39 PM on March 25, 2014

Your psychiatrist can help you, but only if your depression is disabling and going out on sick leave is in the best interest of your mental health. If you are having symptoms that are affecting your performance at work, you can go on leave or on reduced work schedule to treat them. Not ideal timing, but keeps you out of the firing line if it's the truth.

And if you choose to claim illness, you will have to provide a doctor's note. The note should say that you have an illness that is cognitive in nature and that you will be receiving treatment under the care of a medical professional. Never say depression or ADD.
posted by crazycanuck at 11:03 PM on March 25, 2014 [1 favorite]

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