Caught in the act: Employees who job hunt
Is it legal — and if so, is it advisable — to fire a worker if he or she is looking for another job?
“Yes, it is legal,” said Eric Meyer, a partner at Philadelphia-based law firm Dilworth Paxson LLP and author of the online law blog “The Employer Handbook.” “Whether or not it is advisable depends on the circumstances.”
While most people work “at will” — meaning they can be fired for any reason, at any time — companies should consider the quality of the employee, any restrictive contracts and legal minefields before terminating someone who’s looking elsewhere for work, labor attorneys and HR experts said.
It’s the naive manager who believes that employees don’t keep their eyes open for other opportunities. Companies should consider terminating such workers if they are privy to confidential information, trade secrets or proprietary data, “especially if they’re looking to transfer to a competitor,” said Jon Hyman, a partner in the labor and employment group at Ohio-based Kohrman Jackson & Krantz PLL.
“My first question would be: ‘What do they do? What information do they have access to? Are we concerned about leaks of information?’ If that’s it, maybe we need to push the employee out the door.”
It is important to take into account how a manager learns that an employee is seeking another job. If someone uses an office computer or work e-mail account to search or apply for positions, “then it’s on company equipment and it’s fair game for a company to look at,” Hyman said.
“The caveat is going to be if an employee uses a personal e-mail account through company equipment. A company can’t hack into my personal Gmail account even if a company learns my password.”
Also risky is firing an employee who’s looking for a job in order to escape perceived harassment or some other illegal working condition, cautioned Jonathan Segal, a partner in the employment services practice area at Duane Morris LLP.
“Sometimes employees leave to avoid filing lawsuits,” he said. “They’d rather switch than fight. If you terminate them, the discharge itself may not be illegal, but by taking away their opportunity to switch [jobs], they may end up fighting. It may bring about a claim if the employee was trying to avoid [filing a lawsuit] by finding another job.”
Hyman said if an employee being terminated has a written agreement with the company, managers may owe the individual bonuses or other compensation.
High performers versus the mediocre
Managers should also consider whether the offending employee is a high performer.
Typically, good workers are job searching because they don’t feel recognized or appreciated or they don’t see any career trajectory at their organization, explained Holly DePalma, director of HR services at Pennsylvania-based MidAtlantic Employers’ Association, a membership organization that provides workplace strategy consulting.
“Let’s say they’re interested in new challenges, but they perceive an inability to move up in the organization, and you identify this person as a potential leader who you want to keep,” she said. “Wouldn’t a company be better off having some dialogue with the employee or implementing some kind of plan for that person to grow and develop? Turnover is extremely costly, and good employees are hard to find.”
Managers should think about keeping even run-of-the-mill employees if trade secrets aren’t at risk, according to Hyman.
“Maybe your first reaction shouldn’t be, ‘Get that disloyal SOB out the door,’ ” he said. “Maybe it should be, ‘Why is this employee dissatisfied? Is there something we’re not doing right to meet their needs?’ ”
Residual suspicion and hard feelings
Having a blanket policy that requires firing employees who look for other jobs may not be wise, Segal said.
“What message does that send to the workforce?” he asked. “That if you’re not happy, you’d better stay put because if we catch you looking, we’re going to fire you? Then you end up with employees who feel trapped and create mischief.”
But if companies keep job-hunting workers on board, might managers harbor ill will or residual suspicion about their loyalty or productivity?
“I’ve worked with very traditional presidents who might have that kind of feeling about an employee — that they’re no longer loyal,” DePalma said. “And I’ve had a couple of instances where I counseled them and said, ‘I think you’re being shortsighted.’ It’s now a two-way street and very different from the way it used to be years ago. Especially with young employees, it’s all about, ‘What are you doing for me?’ ”
Hyman said managers should also be careful when providing references for individuals who were fired for looking elsewhere. While it may be tempting to bad-mouth the worker, it’s wisest to “subscribe to a less-is-more philosophy.”
“Companies today are gun-shy,” he observed. “They don’t want to risk a lawsuit, so they’ll just confirm that this person was employed on these dates in this job position and maybe give a salary or wage. They don’t want employees to say, ‘I didn’t get hired and you’re liable for defamation.’ If you’re going to let [an employee] go, don’t do anything after the fact that will get you sued. Don’t hinder the employee’s job search; don’t reach out to companies and say malicious things about the employee. Let them go about their business and try to find that new job.”
Dana Wilkie is an online editor/manager for SHRM.
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Market Recap: RISI Crow’s Construction Materials Cost Index
A price index of lumber and panels used in actual construction for Oct. 4, 2013
*Western – regional species perimeter foundation; Southern – regional species slab construction.
Crow’s Market Recap — A condensed recap of the market conditions for the major North American softwood lumber and panel products as reported in Crow’s Weekly Market Report.
Lumber: Slow sales activity at SPF mills kept prices from moving higher. Futures at a large discount to cash added some uneasiness to the market. Traders’ called the market “confused” and “a mixed bag;” those descriptions inspired by relatively strong sales at yards, sluggish sales but firm pricing at mills, and significant discounts offered by some wholesalers. Southern Pine lumber mills reported selling less than their weekly output, which eroded their order files and placed more downward pressure on prices that were already suspect. Mills often reported a moderately slower pace to the Coastal species lumber market, yet prices remained firm or edged higher in a few instances. Sales in the field were mixed, with some yards reporting steady sales, while others said takeaways slowed. Inland species lumber producers reported slower sales but attributed the slowness to a lack of available prompt inventory and buyer’s hesitancy to make purchases for two or three weeks out. Buyers turning to office wholesalers found offerings at the secondary level were also limited. Activity for Radiata Pine was light on inquiries, as well as offerings from producers. The strength in the Ponderosa Pine industrials market continued to be demand from door and window manufactures and cut stock plants, which helped push mill order files for #2 Shop out to late October. Ponderosa Pine #2&Btr Common boards remained the price leader in the board market, while #3 and #4 tagged along, but at a much less feverish pace. Eastern White Pine producers reported order files to the end of October with a few items into November. Western Red Cedar producers often spoke of a gradually slowing market over the long haul but said they experienced steady sales during the week.
Panels: The OSB market remains strong and holding firm, although more buyers turned to secondaries for coverage. With mill order files close to the end of October, producers were in no hurry to compete with inventory in the hands of traders. Customers were not as active as in prior weeks, but Southern Pine plywood producers continued to press prices moderately higher wherever an opportunity presented itself. Most mill order files did not get beyond the week of Oct. 14. Buyers continued to purchase enough volumes to push orders at Western Fir plywood mills out another week. Lead times in the week of Oct. 14 were common. Buyers purchased sparingly, but still needed to fill inventory holes generated from good takeaways out of their yards. A few Canadian plywood producers decided to clean up any remaining items and move order files beyond the upcoming holiday week. In order to do that, some sales with discounts took place. Spotty signs of slightly slower MDF sales continued to creep into the market. Particleboard sold at a steady pace, and buyers reported good availability.
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