Employment lawyer Faye Riva Cohen outlines the signs your client may be a victim of “quiet firing” and bullying, along with ways you can help.
Employees who assume they are secure in their jobs are often blindsided by their employer, who is really planning on terminating them. A recent article in Forbes explains that “Quiet firing is a form of passive-aggressive workplace bullying, in which a company makes an employee’s life so difficult that the employee eventually quits” and reveals some of the ways employers nudge workers out the door.
Although the term “quiet firing” is relatively new, I’ve seen the practice play out again and again in my employment law practice.
Why Not Simply Fire Someone?
Even though employees in many states are “at will” employees, meaning they can be terminated for almost any reason, the termination process is unpleasant for employers and human resources staff. By “unpleasant” I mean that employers fear a terminated employee may:
- Be shocked, disgruntled, unhappy and even become violent
- File charges of discrimination
- Seek a severance package or enhancement of a severance package
If an employer takes actions that encourage an employee to leave on their own, it can save them from uncomfortable confrontations and aggravation — as well as considerable funds as they cull their ranks.
‘Quiet Bullying’ to Force Out an Employee
To avoid firing, I’ve seen employers use “creative” procedures to force out someone or convince them to quit. There are myriad methods by which this bullying can be accomplished:
- Giving the employee negative feedback in the form of a lower performance evaluation rating than they deserve or they have received in past years.
- Placing the employee on a performance review, referred to as a PIP, which an employee rarely survives. (I call a PIP a “kiss of death” because they are generally designed for the purpose of terminating an employee and not for the purpose of improving performance.)
- Denying an employee opportunities for advancement.
- Making an employee’s work meaningless.
- Piling on more and more work and establishing unreasonable goals, which requires working longer hours.
- Changing the terms and financial benefits of employment to make the job less attractive.
- Creating a hostile work environment or isolating an employee from their colleagues.
- Bringing on new management who accuse employees of not being able to perform their jobs, often jobs they have held without issue for many years.
- Offering buyouts, early retirements or other incentives that encourage an employee to leave voluntarily.
- Requiring an employee to return to the office when they prefer to work remotely — a post-pandemic method of reducing workforce numbers by attrition.
- Forcing out an employee who develops physical or psychological problems due to the increased stress and anxiety of meeting the unrealistic goals set by an employer.
How You Can Help a Client Whose Job Is at Risk
If you have a client who is a potential quiet firing victim, suffering indignities at the hands of their employer, you may be able to assist by:
- Providing background support through advice and encouragement that enables them to endure ongoing mistreatment
- Asking the employee to tell human resources staff or their employer that a lawyer is monitoring the situation for them
- Trying to negotiate a severance package for the employee if it appears that termination is forthcoming, regardless of what they do.
Tip for a Client Who Fears Being Forced Out
Often an employee does not realize that an employer is forcing them out and will keep trying to remedy the situation themselves. This usually doesn’t work since the dye has been cast. An employee in this situation should be advised to:
- Document what is happening — but do not store this documentation on a computer that is owned by the employer, since they can gain access to this information. If an employee is asked to suddenly leave, they will no longer have access to the stored information.
- Keep track of any negative feedback, disciplinary actions, emails or conversations with managers.
- Make certain they familiarize themselves with disciplinary policies and PIP rules in their employer’s handbook or policies.
- Talk to their boss if they think it will be helpful to discuss their feelings that they are being pressured to leave, and if that is the case, ask whether their employer will consider a transfer, or offer a severance package.
Final Steps
If your client is terminated, you may be able to assist by:
- Negotiating a severance package or modifying a severance package. Even if additional severance funds can’t be secured, other valuable benefits can be negotiated, such as securing ongoing medical insurance, making the terms of the agreement fairer, clearing an employee’s discipline record, securing a neutral reference, non-disparagement provisions, asking the employer not to contest unemployment compensation benefits, and a host of other issues.
- Threaten to file, or actually file a discrimination charge with one or more government agencies.
- Providing a support system and advice to help a client secure other employment.
Related reading: In “Are You Being Bullied?” Merrilyn Astin Tarlton lays out what workplace bullying in a law firm looks like and what you can do about it.
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