One of the best parts of a boss’s job is hiring people who succeed. One of the worst is showing someone the door. “Talk, Tally, Terminate: Best Practices for Terminating an Employee” at the NACWAA 2005 conference offered advice from:
• Dr. Linda Carpenter, attorney and professor emerita, Brooklyn College NY
• Susan Bassett, director of athletics and physical education at Carnegie Mellon University PA
• Cheryl Levick, director of athletics at St. Louis University MO
Judy Sweet, NCAA senior VP for championships and education services, moderated the session. Their tips for firing coaches can help anyone who finds she has to terminate an employee.
Firing is hard for anyone and especially for women, because they value empathy and relationships. When there’s no alternative, you want to do it right—not only to protect yourself and your school, but out of respect for the person being fired and the community as a whole.
Not every time you let someone go counts as firing, Dr. Linda Carpenter explained. A staffer employed “at will” may be out the door any day. If you don’t renew someone’s contract, legally you owe her nothing. You can be generous and empathic, but you don’t need a reason.
Firing is termination before the end of the contract term, or terminating someone with tenure. Here you must tread carefully to avoid a lawsuit. Constitutional law, statutory law and contract law protect employee rights.
Constitutional law . The Fourteenth Amendment makes states offer due process and equal protection. That includes all public colleges and universities. If you’re at a private college the effect is less clear. “It’s best to assume you need to uphold people’s rights too,” she said.
Equal protection means you can’t treat a whole class of citizens differently. Firing a person of color can lead to charges of failure to give equal protection.
Due process refers to fair procedures such as a hearing and right of appeal. You have to tell a public employee why you’re firing her. Only three reasons are legal: insubordination, incompetence or immorality.
Firing for immorality is limited to behavior that affects the job, such as plagiarism, fudged data or a falsified vita. Community values don’t count; you can’t fire a guy for how much he drinks or whom he sleeps with, unless it’s with a student.
If you want him out today, he’d better have done something irrevocable or irremediable and harms people, like waving a gun on campus. Otherwise due process calls for a long, careful, well-documented procedure. Don’t even consider it without close guidance from Human Resources.
Statutory law. Public and private universities alike must obey the same anti-discrimination laws as other employers with more than a few workers.
Title VII prohibits discrimination based on race, color, religion, sex or national origin. Enforced by the Equal Employment Opportunities Commission, it makes plaintiffs follow specific steps to file and limits punitive damages to $300,000.
Title IX protects whistle-blowers from being fired in retaliation. Plaintiffs don’t have to exhaust in-house remedies before filing and there’s no cap on damages.
ADA, the Americans with Disabilities Act, protects people who can do the essential job but have—or are perceived to have, or related to someone who has—a condition that limits a major life activity. If a professor can still teach, her loss of sight or hearing isn’t grounds to dump her.
Contract law. If you want to fire someone for a reason other than insubordination, incompetence or job-related im-morality, detail it in the contract. Whatever the school and worker negotiate up-front is binding on both.
Religious schools might care very much about their faculty’s sex lives. Put it in the contract. Do you want to forbid obscenity or politically offensive language on campus? Put it in the contract from day one. “You can’t close the barn door later,” Carpenter said.
Contract terms don’t negate due process and anti-discrimination laws. If the only coaches with multi-year contracts are white males, women can posit there’s a reason.
Prevention is the best cure
Firing is a last resort. Precautions reduce the chance it will get that far. Susan Bassett described preventive measures that start before you hire an employee.
• Search process. Start the search with a clear job description and expectations. As you zero in on a candidate, run a thorough background check with plenty of references. Get on the phone to delve beyond what they put in writing. You might ask, “Would you hire this person again?”
• Hiring. Build specific expectations into the contract. Have a clearly written code of ethics that applies to all employees. If possible, gather lots of feedback during a six-month provisional period.
• Evaluation. Accountability and feedback encourage good performance. Give regular feedback and a formal annual review, drawing on observation and student evaluations. Assign measurable goals and use them to rate performance. Be honest in writing about unmet expectations; sugar-coated performance reviews are unfair and backfire in a lawsuit. Make sure the employee signs each evaluation to create a paper trail.
• Coaching. Supervisors in all fields should coach their staff. Start by observing. An AD can watch coaches interact with student athletes. “I like to be around so much that my presence doesn’t matter,” Bassett said. “I want everybody to do well. Nobody wants them to succeed as much as I do.”
Follow observation with sincere and meaningful feedback—public if it’s positive, otherwise private in a non-threatening setting. Plan and document the conversation. Describe work-related behaviors, explain alternatives and listen to the response. Anticipate defensiveness, especially from long-term employees.
• When coaching is not enough . Let HR know what’s going on and they’ll guide you through a progressive disciplinary process, including:
– Written plan to improve performance, with possibility of termination
– Verbal warning
– Written warning
Keywords are document and no surprises. The employee knows what she needs to change and has repeated op-portunities to do so—and you have the paper trail to prove it.
• Fired! As a last resort, termination may be in the best interest of students, program and school. “This is part of our job,” she said. Talk to HR and review the details with the president and legal counsel. They’ll help work out any severance package and other particulars.
Anticipate community reaction, especially when you fire a high-profile coach or popular professor. Make an hour-by-hour timeline for telling the individual, other staff, students, parents and the press.
Plan for moving forward. Who will cover the program? Will you hire an interim on short notice? Prepare a new search. Traumatic as termination may be, the former employee’s life will go on and so will yours.
“Become an expert on hiring, so you aren’t firing nine times out of ten,” Cheryl Levick advised. Quick hires and skimpy reference checks raise the odds of failure.
Constant turnover wastes time, energy, momentum and money. Changing coaches can cost $5,000 up to $200,000.
Writing the contract.
Minimize gray areas by making the contract detailed and explicit. “I always sit with the coach to find out what’s important to them,” she said. The contract also reflects what’s important to her and to legal counsel.
Here’s her checklist for a coach’s contract, which you can adapt for other positions on campus:
1. Terms, dates, rollover
2. Measurable responsibilities as leader, university representative and fundraiser (Number of dollars? Win-loss ratio? Graduation rate?)
3. Consequences of violating NCAA rules
4. Reporting relationships (take philosophical disagreements to the AD)
5. Compensation: base, supplemental, deferred (each can have qualifiers)
6. Fringe benefits such as laptop, cell phone, car, memberships and season tickets
7. Outside income such as camps, endorsements
8. Periodic evaluations, annual or more often
9. What the coach gets if terminated by university without cause
10. Reasons and procedures for termination with cause, such as:
- Serious and harmful legal violations
- Refusal to accept an alternative assignment
- Conduct of moral turpitude
- Violations of NCAA or conference rules and policies, even at a previous school
- Conduct prejudicial to the best interests of the university or the athletics department
- Absence without the reporting supervisor’s consent
You can provide by contract that the coach gets 20 days to fix an issue, such as a budget shortfall. If it’s not remedied in 20 days, termination proceedings kick in.
Ending the contract. When things don’t work out, treat the employee with respect and dignity. If she has a one-year contract and no dangerous infraction, it’s simplest not to renew the contract. Let her know soon enough to start her new job hunt.
Multi-year contracts aren’t so simple. Core principles include treating everyone with dignity, keeping all public com-munications professional and scripted, updating the president daily and making the transition as quick and easy as pos-sible. Levick outlined the steps:
1. Contact HR and legal counsel to make an action plan.
2. For coaches or others who interest the press, have media relations professionals draft a press release and run it by the attorney. Don’t finalize it until you meet with the employee, who may want to add a personal note (subject to your approval); this can help prevent backlash.
3. Meet with the employee to detail the violation, consequence and timeline:
- in a private place
- having a third party as witness
- being professional and to the point
- offering an option to resign
- being receptive to feedback
- remaining open to input on how to announce
4. Have someone from HR ready nearby to talk to the employee and offer help.
5. Follow up with a letter that recaps the session and what happens next. “I have a letter ready but most need to be rewritten. It empowers the coach to have some effect on the outcome,” she said. Give copies to HR and the attorney.
6. Develop a plan to inform other affected people about the employee’s departure and the next steps for the program. Here’s where you can get in trouble. In athletics it means talking to the team and assistants as soon as possible, all in one day. She talks to assistants one by one; it’s too important to delegate. If the coach wants to break the news to the team, Levick sits in to assure them it’s not their fault.
7. Decide how you’ll handle the last day. The angrier the employee, the more important it is to escort him out the door. Don’t let someone go back to the office and delete critical information from the computer.
8. Notify the media on the same day as everyone else. This may require a press conference or simply a press release. Keep all public communications professional and scripted. She once made a statement at the end of a game to stop inaccurate media buzz in its tracks.
9. Reveal search plans in a timely but considerate way.
“Do a gut check every night that you’ve looked at the process and it’s OK,” she said. If it doesn’t feel right, go fix it. You hope to never fire anyone, but when you must, you want to know you’ve done it as well as you can.