Kicking Him When He's Down

April 21, 2016 9:27 AM

He's in jail, and it's his last strike...and, unfortunately, we have to kick the guy while he's down.

We've tried to work with this employee, but his unreliableness has already gotten him written up over attendance. Today, he sits in the county jail for DWI, and we, as a company, have decided to let him go. He has only worked for us for four months, and is still in his probationary period, and we're an at-will state anyhow.

We don't want him holding onto hope that he still has his job, although he should have a pretty good idea this is going to get him fired, but we also like the guy and don't want to cause him too much pain all at once if it isn't necessary. Should we rip the bandaid off, or give it some time? And if we do decide to rip that bandaid, how do we do it -- is this something we can call him in jail about, or are there proper channels?

posted by anonymous to Work & Money (28 answers total)

Are you planning to contact him while he is in jail? Or, are you waiting till he contacts you? I would wait till he contacts you, and gently explain the situation to him. I am unsure what you are talking about, with waiting.
posted by kellyblah at 9:36 AM on April 21, 2016 [1 favorite]

I'll admit that this (thankfully) isn't a situation I've found myself in with one of my employees. But I'd be asking myself, what do I have to gain from contacting him in jail to tell him he's fired? My first inclination would be to sit down with him in person on his next day at work, and break the news to him then (pay him for that day). But if there are concrete reasons you don't want him to ever return (safety issues, legal concerns, you can't afford to pay him a penny more), then maybe leave a message with him at home or on his cell phone?

You're right that this is going to suck for him regardless, and there's not a whole lot you can do about that. But it seems like doing it before he's even out of jail (I'm assuming a DWI would only have him in jail for a day or two?) makes it that much worse without any obvious benefit.

Again, just my off the cuff opinion here....
posted by primethyme at 9:36 AM on April 21, 2016 [11 favorites]

Can you afford to give him a one (ideally two) week severance payment?

If you can afford the payment, it would be a kindness. If not, I don't think there is any moral or social obligation to.

I'd wait until he's out and comes (or calls) again to let him know regardless though -- there's nothing that he can do with the information now -- what's he going to do, go job hunting from jail?
posted by sparklemotion at 9:39 AM on April 21, 2016 [21 favorites]

"Can't come to work cause he's in jail" is definitely a work problem. And "I'm a criminal who values my own convenience and preferences over the lives of others" is hardly a personal problem.

The one thing I would think about is whether his having a job will help him for getting bail. It might. Since you've implied this isn't even his first DUI, I would fire him right away to keep him off the road.
posted by If only I had a penguin... at 9:40 AM on April 21, 2016 [12 favorites]

But yeah, if you're firing him, you should give him severance.
posted by If only I had a penguin... at 9:41 AM on April 21, 2016 [1 favorite]

Can you treat this incident as an attendance problem-- e.g. was it in effect an unexcused absence? If so you can just let him know he ran out of absences. He may have figured this out already.
posted by BibiRose at 9:42 AM on April 21, 2016 [8 favorites]

He has only worked for us for four months, and is still in his probationary period, and we're an at-will state anyhow.

and

you should give him severance.

does not compute. You don't show up to work (regardless of the situation, the DUII doesn't factor in here...its shitty, and a terrible situation, but it has nothing to do with what needs to happen) during your prohibitionary period, and you're done. This is kind of a no-brainer. You don't need to call him in jail; wait until he contacts you and let him know then.
posted by furnace.heart at 9:50 AM on April 21, 2016 [14 favorites]

He's charged with DWI, and presumably hasn't even been arraigned yet much less convicted. If you are going to fire him, fire him because of whatever it is you fire people for (absences, performance, etc.).
posted by headnsouth at 9:52 AM on April 21, 2016 [18 favorites]

you should give him severance.

Are you a charity? If not, you shouldn't give him severance. And if you are a charity, then you shouldn't give him severance either—the money should go to something that will further your charity's goals.
posted by grouse at 9:54 AM on April 21, 2016 [9 favorites]

It's not like he got cancer - he committed a crime and got arrested for it. I'd be surprised if he thought he was coming back to work but if he does just give him his stuff and take his key.
posted by ftm at 9:56 AM on April 21, 2016 [3 favorites]

I think severance is something to consider because the OP "like[s] the guy" and is worried about "kicking him when he's down."

I think it would be going too far to give him another chance or a two-week notice or anything, since this is part of a pattern of behavior that can't be making life easy for OP or the other employees, so firing is the way to go.

But, a severance could probably help this guy out with the various problems that he's likely facing right now, and might help keep his life from immediately spiraling out of control. So it would be kind for OP to consider it, if it's feasible.

And, while I don't think that the bosses should make a huge deal out of how generous they are being, if the fact that the employee got a severance (or was otherwise treated fairly) were to get around, it would help the other employees to know that they work for a company that does actually give a bit of a shit about them.
posted by sparklemotion at 10:01 AM on April 21, 2016 [13 favorites]

He has only worked for us for four months, and is still in his probationary period, and we're an at-will state anyhow.

Just as an FYI, I was comptroller at a firm who terminated an employee when he didn't show up to work because he was in jail. He applied for unemployment; we objected on the grounds that he had been terminated for cause. (The cause being missing work, not being arrested.) He prevailed on appeal and was able to collect.
posted by layceepee at 10:04 AM on April 21, 2016 [3 favorites]

If he's unreliable and has just been arrested for DWI, he likely has addiction problems. You like him because he's likely charismatic.

Yes you must fire him during the probationary period for unplanned absences and being unreliable. Pay him for the day and any outstanding wages owed immediately because that's the professional way to handle this.

You can not keep him on because it poisons your relationships (and whatever authority you depend on) with all of your other employees.
posted by jbenben at 10:10 AM on April 21, 2016 [11 favorites]

You can't call him in jail, you can't call anyone in jail. They don't get to keep their cell phones and they have limited access to pay phones. He may or may not call you.

It sounds like he has alcohol/substance abuse problems. Does your company provide him with health insurance? And, if so, does the plan cover residential substance abuse treatment? How long after he gets terminated from the job will his insurance last? Or are you in a country with a national health plan making this irrelevant?

He's worked there for such a short time I don't think you should feel you need to give him severance pay.
posted by mareli at 10:10 AM on April 21, 2016

You need to remove the "he's in jail, DWI and we like him" stuff from the equation as best you can. Firing or not firing or delaying firing based on how much or little you like someone is the kind of thing that gets companies sued. Yes, you are human and, realistically, that stuff always factors in to some degree. But it isn't supposed to be an explicit part of the equation.

To me, kicking someone while they are down means taking glee in their suffering or adding to it gratuitously. If he deserves to be fired, firing him is not adding to it gratuitously. It may feel icky to you to fire him, it may feel especially icky due to the "timing" because he is in jail, but it isn't gratuitous. It isn't the same as someone going "Oh, look, he is vulnerable. Let me get some extra licks in for shits and grins that would normally not be possible just because I can!"

It is possible to say "Hey, you know I have no choice but to fire you" and be civil about it without getting into all the big feels. And he might actually appreciate it if you didn't get into all this emotional crap. It isn't appropriate. Even if he doesn't appreciate it, it may be a growth experience for him.

You need to focus on the logistical questions of how/when to notify him since he is not easy to access at the moment. Review your policies and see if it is normal to contact people off site. My understanding is firing typically happens on the job site. That would mean waiting until he comes back to work to give notice.
posted by Michele in California at 10:12 AM on April 21, 2016 [8 favorites]

if your progressive discipline is at the termination stage, fire him for the attendance issue, or whatever the paper trail relates to.

As to the personal feelings, I think you need to look at this as sending him on his journey through life without all y'all. Losing his job over a DUI might be the wake up call he needs. Might not be, either, you just don't know. Either way, that's what needs to happen.
posted by raisingsand at 10:16 AM on April 21, 2016 [6 favorites]

If your problem is the attendance, fire him for that. He probably assumes he will be fired anyway, or at least won't be surprised.

But holy hell it is shocking how many people in this thread are willing to assume he is guilty right off the bat. I truly hope you all never find yourself in a situation in which your fundamental rights are so disregarded.
posted by likeatoaster at 10:21 AM on April 21, 2016 [10 favorites]

MoonOrb - I can see that logic if the employee was not terminated at all, or was given extra money/time off to deal with his problems while employed. However, actually firing the guy and giving him a small amount of severance would, in my mind, only set the precedent of giving severance - nothing about work reviews, etc.
posted by amtho at 10:29 AM on April 21, 2016 [2 favorites]

You fire him when he reports back into work for his unexcused absences.

You don't owe him any severance, and yes, being in jail for DWI sucks, and it will be a blow for him and his family, but that's not really your concern. Don't even mention it. He may not be guilty and it's immaterial to the main point, which is that he has issues with attendance and tardiness.

Write it up as an unexcused absence when he returns. If this is the last one, it's the last one. That's why you don't burn out your excuses all in one batch, because sometimes shit happens. He wouldn't be on the chopping block if there wasn't a history of not showing up to work.
posted by Ruthless Bunny at 10:31 AM on April 21, 2016 [13 favorites]

When he gets out and contacts you, he is fired. I don't think you owe any severance, but I would consider giving him 1 week. If he doesn't contact you by Monday, fire him with no severance.
posted by AugustWest at 10:53 AM on April 21, 2016

For what it's worth, this is why you have clear, written policies in your employee handbook. At least the last five places I worked at all had "can't come to work because you are in jail" as a specific line item on the page discussing how you can get fired for absenteeism. We also had carefully designed progressive discipline, which included more-severe penalties when you don't show up for three days straight and don't call (as opposed to being half an hour late and calling, etc.). The handbook also states whether or not you'll get severance.

Every place I've worked at would send a letter to his home stating that he's been terminated as of whatever date, and been ready to escort him off the premises if he showed up. Most employees don't bother to show up, I've found - at the job where we held hearings before firing people, easily a third of the hearings resulted in "we fired you because you didn't show up to the hearing where we were going to probably fire you" letters.

When appealing an unemployment claim, BTW, you always include the page of policies that says they can get fired for what they did, and the piece of paper that they signed stating that they had received the policies book.
posted by SMPA at 11:38 AM on April 21, 2016 [10 favorites]

People getting fired because arrests caused them to miss work, completely independently of the merits of the case, is one of the ways the court system wreaks harm on low-income communities. I'm not questioning your judgment here, OP, since I don't know what other problems you've had with him that may well justify firing him. I'm just saying, the idea being booted around here that "being arrested" is the same as "being a criminal" and "missing work because I was physically locked up somewhere by the government" is the same as "deliberate absenteeism" is more than a little scary.
posted by praemunire at 12:17 PM on April 21, 2016 [39 favorites]

Having a job may be one of the considerations for the court in determining a bail amount or even granting bail in the first place.

Wait until he gets out, or until it's clear he's not going to before trial or disposition.
posted by jamjam at 12:27 PM on April 21, 2016 [1 favorite]

If you decide to notify him promptly, I believe you can send a letter to him at the jail. In that situation, send a certified letter to his home as well in case he gets out before the first letter reaches him. And please don't assume he knows he's fired. I worked with someone who was fired for a no call/no show three times. She got incredibly indignant because she no one told her she would be fired for that.

There is the possibility that when/if he goes to trial, his sentence may include gainful employment as a condition of his release. So I'd make sure and notify him promptly and clearly.

My current managers can hardly ever be arsed to deal with problem employees. The level of frustration among all the competent employees is huge. It's completely demoralizing to feel like managers all consider us on the same level. There's zero motivation to work hard when they see us all the same. So please consider handling this promptly.
posted by Beti at 12:29 PM on April 21, 2016 [3 favorites]

You rip the bandaid off when he contacts you or he shows up at work. Keep it concise. He may or may not take it well, but even if it's bad news, I've always respected an employer for delivering the news straight up.
posted by azpenguin at 3:27 PM on April 21, 2016 [2 favorites]

There's a good chance he has an addiction problem which under current psychological theory is a mental illness and a bona-fide disability.

It may be helpful to think about the company would react if the situation were slightly different: Mr. X. who had poor work attendance, turns out to have epilepsy, and recently had a seizure and is in the hospital and can't attend work.

Fire him?

There is a TON of prejudice that attaches to mental illness that doesn't attach to other forms of illness.

Are you "kicking him when he's down" or "kicking him when he's sick"?
posted by soylent00FF00 at 4:43 PM on April 21, 2016 [2 favorites]

I once had to miss a few days of work for a legal issue that, frankly, didn't reflect very well on me. I was, and am, innocent and have never been charged with a crime, but as I recall I did not have vacation time. The company was entirely understanding with the caveat that once whatever legal machinations were completed, my absence would be considered in light of the ultimate determination.

Yeah, this guy may have problems at work, but he is being detained against his will. That's what arrest is. Maybe he really wants to be there, and would be there if he weren't, y'know, under arrest. Suspend him without pay, sure, because he's not working right now. That way if he's convicted you can fire him and not owe him back pay and have a clear conscience.

But maybe he ran across a cop who had a bone to pick and he's now sitting in a cell awaiting exoneration, or waiting for a judgement in a counter-suit. And say he gets it. Will he have lost his job due to a malicious prosecution? Presumption of innocence is a large part of what makes civil society civil.

So, no. I don't think he should lose his job yet. Maybe later, sure. But right now he's not been proved to have done anything wrong, and the onus is on the state to show good cause for having inconvenienced you, not him.
posted by TheNewWazoo at 5:30 PM on April 21, 2016 [12 favorites]

My partner tells me an employee at his workplace was suspended without pay while in jail, which turned out not to result in a charge. He was reinstated after a hearing when he got back. Hearing because this is a large, union workplace. On reflection after reading this thread, I think that would be the best path. If this was theoretically the last of his incidents before getting fired, I would put a hold on it and see.
posted by BibiRose at 5:45 AM on April 22, 2016 [3 favorites]