Consider the Season

Nov 27, 2012

Consider the Season

 

 

As any retailer will tell you, this year’s Holiday Season is special. We are in the midst of the longest possible “Holiday Season,” defined as the days between Thanksgiving and Christmas. Because Thanksgiving was one week earlier than usual this year, we have 32 days between Thanksgiving Day and Christmas. Most Holiday Seasons are a measly 26 to 28 days, but this year we get 32! That’s 32 days of emails from retailers about holiday sales, 32 days of Christmas music on the radio, 32 days of Christmas commercials on TV, and at my house, 32 days of Cindy-Loo-Hoo and the Grinch (my four-year-old’s favorite holiday character). It also means 32 days that employers need to be even more mindful when making employment-related decisions.

Employees sue employers for adverse employment actions, most often, when the employee perceives unfairness. The perception of unfairness may or may not be something the employer can control. But when considering whether to take an adverse employment action, when to do it, and how to do it, the employee’s perception of fairness in the process can be a leading indicator as to whether the decision will lead to legal action later. From my experience, employees who lose their jobs during the Holiday Season are more likely to perceive unfairness than those who lose their jobs in early January. This can be particularly poor timing for employers, especially those who do annual performance reviews to coincide with the end of the calendar year. However, when possible, I caution employers from notifying employees of a pending job loss during the Holiday Season.

Last year, I had an employer call me to discuss the possible termination of an employee to take place on December 23rd. The reason? Poor performance. Now as we all know, on any given day an employee can engage in such egregious behavior that termination is the only acceptable response, be it October 24 or December 24, and I do not advise employers against acting when necessary. However, a poor performing employee was poor performing on November 15 and likely will still be a poor performer on January 3. Terminating that employee right before Christmas increases the risk of a lawsuit for the employer because it will increase the employee’s perception of unfairness. Money is tight for many around Christmas. The job loss will be seen as unfair and not only by that particular employee.

Another reason to avoid the right-before-Christmas termination is its effect on employee morale. News of a termination travels fast no matter what the employer does to try to keep the matter private. The employees who remain are also likely to see the employer as unfair. The chatter around the mill or office will be, “Can you believe that? And so close to Christmas…” “He has ___ kids at home.” “Couldn’t they have waited?” Even those employees who were complaining just last month about the poor performer will suddenly be sympathetic around the holidays. And let’s not forget that, although rare in employment lawsuits, occasionally such decisions also have to be explained to a jury. Counsel for the plaintiff-employee will surely argue that the employer is like the Grinch who “stole” Christmas from the employee and his family, even where the documentation of poor performance is ample. No employer wants to be in the position of having the size of his heart questioned by a jury.

So, for the next thirty or so days, when considering the potential risk of adverse employment actions, along with: “How sound is the documentation?” and “Is the employee in a protected class?” add the question: “Do we need to do this now?” Sometimes the answer will be “yes,” but often you may find it best to wait until the beginning of the New Year.

Now enjoy the season and all of its wonder…I’m off to make reindeer antlers for the cat!

 

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