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October 18, 1998

THE RIGHT THING

In Dismissals, Silence Has Its Perils


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  • The New York Times: Your Money
    By JEFFREY L. SEGLIN
    YOU walk into the office, and as the day goes on you realize that the guy who sat in the cubicle next to you for years isn't there. It's not just that he hasn't come in to work. There is no trace of him. The family pictures, the plants, the cartoons he liked to clip and post are simply gone. Office scuttlebutt has it that he has been dismissed. But there is no official word: no memo, no department E-mail.

    Welcome to the modern workplace, where companies are so concerned about wrongful-termination suits that silence often replaces honest communication. Most managers with power to dismiss have faced the problem:whether to let people know why a colleague has been let go or to lie low.

    A consequence of the first option is obvious: the risk of being sued for what may be seen as defamation. A consequence of the second may be subtler, but no less serious: creating a climate of fear and being labeled a boss who does not level with the staff.

    Who can blame companies for choosing the silent route? In 1997 alone, more than 50,000 wrongful-termination suits were filed in state and Federal courts, according to Edgewater Holdings, an insurer in Chicago.

    "The upshot is you get a workplace where the law has made speech dangerous," said Walter K. Olson, a senior fellow at the Manhattan Institute and author of "The Excuse Factory: How Employment Law is Paralyzing the American Workplace" (Free Press, 1997).

    One casualty on this battlefield was Paul J. McCarthy, dismissed in January 1994 by a Rochester division of Unisource Worldwide, a big marketer of paper and packaging systems. McCarthy had sold the unit's packaging machinery for almost four years. Unisource bought the company midway through his tenure. After initially being given no explanation for his dismissal, he said, he later was told he failed to meet "performance related criteria."

    McCarthy contends that he was dismissed because he told supervisors about conduct by a fellow employee that had put a Unisource vendor at a significant safety risk by taking him to a bad neighborhood. The vendor confirms that account, but did not report the incident to Unisource and declined to be identified.

    "We sold over $1 million worth of product through his company," the vendor said. "I didn't want to risk losing the business." But he did tell McCarthy, who was a friend. "He went ballistic on it," the vendor said. "Paul's a pretty righteous person."

    MR. McCARTHY reported the incident to a regional vice president. The vice president told McCarthy's boss to dismiss him, according to McCarthy and others involved.

    McCarthy, 39 at the time, was not part of a "protected class," like members of a minority group or older workers, that can sue over a retaliatory dismissal, if that is what occurred. Given New York law's adherence to the notion of "employment at will," Unisource did not need to give a reason for dismissing him.

    Patrick Farris, senior counsel at Unisource Worldwide's headquarters in Berwyn, Pa., said, "The company is very comfortable with the decision that it made with respect to his termination."

    If there is no legal issue, where is the ethical problem? It's simple. Fear of being sued has led to a situation in which people treat one another badly. They don't talk, or they talk but don't say anything. But this may backfire, said Mary Dollarhide, a management lawyer. Consider a situation, she said, in which a worker in a protected class has been "a lousy performer," and there has been no employer discrimination. "You don't counsel them because you're afraid you're going to get stuck with some bogus lawsuit having to do with their protected status," she said. "When things deteriorate to where you have to fire this person, you're going to end up with an empty personnel file without a lick of evidence that anything was ever wrong."

    Not a lot of winners in that picture.




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