“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, as long as it is not discriminatory—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 vs. 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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