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Jay Shepherd - Firing at Will: A Managers Guide

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Jay Shepherd Firing at Will: A Managers Guide
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Firing at Will shows managers and employers how to do the most difficult part of their jobs: firing employees. Written by a leading employment lawyer in a refreshingly unlawyerly style, this guide takes the reader through the always-risky process of letting an employee go. Many employers and managers are afraid to pull the trigger when the employment relationship has broken down, and will postpone the decision by using progressive discipline and performance-improvement plans. However, an employer must be able to unload employees who threaten to undermine the company and its prospects, regardless of the risks involved in a termination. This book explains how to do it, how not to do it, and how to minimize the danger of an expensive employee lawsuit. No one said being an employer or a manager was easy. Fortunately, knowing how to fire employees will make your job much, much easier in the long run and save you heartache. Firing at Will teaches you what you need to know, without any legalese or boring recitations of statutes and case law. This book is filled with plain-English common sense, based on Jay Shepherds 17 years of protecting employers in court. The style is conversational and often irreverent, but the lessons and tips are battle-tested. If you want to be a successful manager or employerand sleep easieryou need to know how to fire at will. Gives employers and managers real-world advice on how to fire employees Teaches how to keep your companyand yourselfout of expensive employee lawsuits Guides you toward building a workplace where youll need to fire fewer employees What youll learn How to make the ultimate decision to fire an employee, and how to carry out that decision The 30 riskiest employees to fire The critical Retained Dignity factor, and why you need to keep it as high as possible Why progressive discipline and performance appraisals are ineffectual How your hiring methods and decisions can help you avoid firing employees later How to have gruntled employees who wouldnt dream of suing you Who this book is for Firing at Will is a handbook for managers, employers, business owners, human resources professionals, and in-house counsel. Most of these readers will have had very little training in the hows and whens and whys of firing employees. Most people just follow their instincts, often leading to disastrous consequences. For anyone who has the responsibility of hiring and supervising employees, Firing at Will gives guidance and direction to lower the risks of employee terminations. Table of ContentsIntroduction: The Hardest Part of Your Job At Will Is Alive and Well The Freedom to Fire Risky Business: The Perils of Employee Lawsuits The 30 Riskiest Employees to Fire Why Me? The Reasons for Firing How to Fire an Employee Retained Dignity The Paper Trail Second Chances and PIPs Sign of the Times: Layoffs Discrimination Cases: Part 1 Discrimination Cases: Part 2 A Big Payday: Wage Cases He Said, She Said: Sexual Harassment Lawyering Up Throw Out Your Personnel Handbook Hiring to Avoid Firing Gruntled Employees Appendix B: Firing Around the World Appendix A: Firing Checklist Appendix C: Sample Documents

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Firing at Will A Managers Guide Copyright 2011 by Jay Shepherd All rights - photo 1

Firing at Will: A Manager's Guide

Copyright 2011 by Jay Shepherd

All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system, without the prior written permission of the copyright owner and the publisher.

ISBN-13 (pbk): 978-1-4302-3738-9

ISBN-13 (electronic): 978-1-4302-3739-6

Trademarked names may appear in this book. Rather than use a trademark symbol with every occurrence of a trademarked name, we use the names only in an editorial fashion and to the benefit of the trademark owner, with no intention of infringement of the trademark.

Lead Editor: Jeff Olson
Technical Reviewer: Nicole Corvini, Esq.
Editorial Board: Steve Anglin, Mark Beckner, Ewan Buckingham, Gary Cornell,
Morgan Ertel, Jonathan Gennick, Jonathan Hassell, Robert Hutchinson,
Michelle Lowman, James Markham, Matthew Moodie, Jeff Olson, Jeffrey
Pepper, Douglas Pundick, Ben Renow-Clarke, Dominic Shakeshaft,
Gwenan Spearing, Matt Wade, Tom Welsh
Coordinating Editor: Jessica Belanger
Copy Editor: Kimberly Burton
Compositor: Mary Sudul
Indexer: SPi Global
Cover Designer: Anna Ishschenko

Distributed to the book trade worldwide by Springer-Verlag New York, Inc., 233 Spring Street, 6th Floor, New York, NY 10013. Phone 1-800-SPRINGER, fax 201-348-4505, e-mail orders-ny@springer-sbm.com, or visit www.springeronline.com.

For information on translations, please contact us by e-mail at info@apress.com, or visit www.apress.com.

Apress and friends of ED books may be purchased in bulk for academic, corporate, or promotional use. eBook versions and licenses are also available for most titles. For more information, reference our Special Bulk SaleseBook Licensing web page at www.apress.com/bulk-sales.

The information in this book is distributed on an as is basis, without warranty. Although every precaution has been taken in the preparation of this work, neither the author(s) nor Apress shall have any liability to any person or entity with respect to any loss or damage caused or alleged to be caused directly or indirectly by the information contained in this work.

To Heidi,
for standing by me all these years
and allowing me to pursue my dreams

Contents
About the Author

Jay Shepherd is a writer and speaker focused on fixing workplaces so that - photo 2Jay Shepherd is a writer and speaker focused on fixing workplaces so that individuals are free to do their best work.

For 17 years, he worked as an employment litigator and adviser helping companies stay out of trouble. He had something of a knack for it: Law & Politics magazine named him one of the Top 100 Lawyers in New England. One thing he didn't have a knack for was tracking hours, so in 2006 he banned timesheets from his Boston law firm, Shepherd Law Group. This made some waves around the country and the world, which led Jay to write and speak about the subject. In 2011, he closed the law firm after 13 years and opened Prefix, LLC (prefixllc.com), a firm that helps professionals learn how to price their knowledge.

Jay writes two award-winning blogs. Human Resource Executive has called Gruntled Employees (gruntledemployees.com), his workplace blog, the top HR web site. The American Bar Association has twice listed The Client Revolution (clientrevolution.com), which focuses on reinventing the business of law, as one of the top 100 lawyer blogs. He has also been a widely read columnist on Above the Law (abovethelaw.com/author/jshepherd), the world's most popular law blog.

Jay is married to the chief human-resources officer of a top Boston law firm, and they have two amazing young daughters who enjoy reading so much that they might even read this book. Eventually.

Follow Jay on Twitter at @jayshep, or e-mail him at jay@prefixllc.com.

Acknowledgments

My father, Norm Shepherd, has been telling me to write pretty much this exact book for the last 15 years or so. I always knew he was right, but I needed to get to this point in my life to be able to do it justice. My mother, Geri Shepherd, has been a force of encouragement my whole life. Without the love of these two amazing people, I never would have been able to acquire the experience, knowledge, and judgment that I now share in this book. Thank you, Mom and Dad.

I also owe a huge debt of gratitude to my grandparents, now gone but never forgotten. Jim Whalen was the biggest supporter of my going to law school; Evelyn Whalen taught me about unconditional caring and compassion; Norman Shepherd, a banker and an author in his own right, got me interested in business; and Rose Shepherd, a schoolteacher, taught me the value of teaching others.

Heartfelt thanks to my parents-in-law, Jack and Lily Goldstein, whose support for and interest in my career and business were indispensable. I am so grateful for being welcomed into their quintessentially American family.

I have been incredibly fortunate to become involved as a senior fellow with the VeraSage Institute (verasage.com), a think tank devoted to improving the professions and trashing timesheets. I have learned so much from my fellow fellows and colleagues, and much of their wisdom adorns these pages. Three of my VeraSage friends merit special attention:

Ron Baker, the founder of VeraSage, is the smartest individual I have ever met. I have learned more from him in a few short years than I have from anyone outside my family. His visions for improving the lives of professionals are revolutionary. I'm humbled by the wonderful Foreword he's contributed to this book, and I am honored by his invaluable friendship.

Along with Ron, VeraSage senior fellow Michelle Golden helped guide me through my pivot from running a law firm to becoming a writer and speaker. Michelle has the uncanny ability to mesh business strategy with openness and compassion. As a social-media expert, Michelle has taught me countless lessons about being connected. (And without social media, this book never would have happened.) As published authors, both Michelle and Ron also provided me with enormous support toward completing this book.

In Australia, VeraSage senior fellow John Chisholm welcomed me into his home and hosted me on a speaking tour of law and accounting firms. It was that trip last year that proved to be the tipping point for my pivot into this new phase of my life. John's humor and friendship more than make up for his stinginess with the Shiraz.

Back home in the States, I owe my legal career and much of the wisdom that I learned and now share with you to two amazing employment lawyers. Ellen Kearns and David Rubin were my first (and, as it turned out, only) bosses in the legal profession. Ellen taught me how to build up a boutique law firm and a national reputation in the law. She was a wonderful role model for me. I've always said that Dave was the best employment lawyer in Boston whom nobody knew. That's an exaggerationmore people know him than he realizes. But Dave is a top-notch labor and employment lawyer who eschewed the limelight. His dry sense of humor and great good sense helped make me the lawyer I became.

I also owe a gigantic debt to the professionals I worked with at Kearns & Rubin and Shepherd Law Group: Steve Reed, Debbie Cohen, Lurleen Gannon, Sarah Turner, Mike Pacinda, Mike Bertoncini, Annie Ladov Eisemann, Nicole Corvini, Shannon Lynch, Lara Czerwinski, Jennifer Becker, and Jonathan Duke.

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