If Your Employer Is Trying To Fire You

I was reading through one of my cases about a contract dispute between an employee and an employer, and there were a couple of things I picked up from the case that I thought would be worth mentioning to you.

The basic plot was this: A business owner promises his 82 year-old janitor that he can continue working there for the rest of his life, and when the business owner dies and leave his son the business, the son is looking for ways to get rid of the the janitor and wipe him off the payroll.

He cut the janitor’s hours, lowered his wages, and still couldn’t get him to quit. Eventually, the son that became the business owner was able to fire him. And here’s how he did it.

First, he had the janitor fill out a self-evaluation form and scorecard, in which the janitor gave himself scores like 7/10 or 8/10, that sort of thing. On the self-evaluation form, the janitor was asked to list his weaknesses. The stuff that the janitor honestly included (not being able to move as quickly to perform the job, not being able to lift certain objects), was used in court against him.

Additionally, the son/new business owner would give the janitor self-improvement books with the instruction to read them. Of course, being a real person, the janitor did not read them, and told his boss as such. In court, however, the son submitted this as evidence of trying to help the janitor improve his performance, but it was the janitor’s unwillingness to follow instructions and read the book that got him into trouble.

Now, some of you may read this as “If an S.O.B. employer really wants to get rid of you, he’ll be able to do that eventually, and you might as well accept it.” That viewpoint would be fair enough.

But the other side of the story is that, if you find yourself in the position of being an employee, there are steps that you can take to protect yourself.

First of all, if you are ever asked to fill out a self-evaluation form, you should give yourself the highest marks. Ten out of tens everywhere. Most people are naturally modest and have an aversion to “bragging” like that, but you need to see it through the lens of not firing yourself. By giving yourself suboptimal scores, you’re giving your employer “ammo” that could later be used against you. And when asked to cite your weaknesses, you should just write something to the effect of: “My employer has not informed me of any deficiencies with my work, nor am I currently aware of any.” If your objective is to keep your job, you don’t want to give your employer a list of things they could take to court and say, “Even he admits himself that…”

And secondly, if your employer does something hokey like give you a self-improvement book, you better read and be able to answer questions about it. Obviously, this experience is about as dignifying as going through TSA security, but it’s something you need to be aware of—you don’t want to have documented experiences of insubordination on your record. That provides fodder for a justified firing.

The judge ultimately ruled in favor of the son/business owner, on the logic that a lifetime contract has the “implied term” that the job will be performed adequately. By having documented the employee’s unwillingness to follow instructions, and citing the janitor’s self-admitted weaknesses in court, the son was able to demonstrate that the elderly janitor was not performing the job properly.

We all know this is B.S., but it’s the type of information worth preparing for. In some ways, though, this blog is a living tribute to outlining the steps that will permit you to not be in the position of that eighty year-old janitor. When buying stocks, Warren Buffett says that you should invest in companies with such strong, durable brands that even a ham sandwich could run the company, because some day, one will. In the employer-employee context, you should prepare as if you will someday have this “son” as your boss. The answer to all of these problems invariably comes back to deliberately designing your life so that you don’t have to be in these types of positions in the first place.