What’s the Right Way to Fire an Associate?

[WSJ_law_blog]

If a firm is going to fire associates, what’s the best way to handle it?



That’s one of several questions raised by the email sent by a former associate at Paul Hastings that landed on Above the Law earlier this week. (Click here for the post.) The implication of the associate’s email: that the firm had laid her off for pretextual reasons, blaming her work performance when, in actuality, the firm wanted her gone before she had “a chance to get pregnant again.” (According to the email, the associate had recently suffered a miscarriage.)

A Paul Hastings spokeswoman told Above the Law: “We disagree with the person’s description of what occurred, but. . . we don’t comment on internal employment matters.”

Granted, we don’t know what actually happened between the Paul Hastings associate and the firm, and that situation also raises the issue of possible pregnancy-related discrimination. But the email also talked about business slowing at the firm.

Given the economic climate, other firms already have and may need to fire associates: If they do, what’s the right message, internally and beyond?

Some associates, apparently like this one, feel firms blame their performance when the issue has entirely to do with the firm’s economic performance. The firms’ motivation? Fear of what impact the “L” word, as in layoffs, can have on law-firm recruiting. “It conveys an image to the talent out there that they’re fungible,” says law-firm consultant Peter Zeughauser. “And lawyers or law students don’t want to be thought of as fungible. So, given an array of choices, they’ll go to a firm where they’re not perceived that way.”

But Zeughauser and others say that when a law firm is forced to lay off associates, it’s important to be honest about the reasons behind the moves. “In the world of inside sources and blogs, everyone knows why you’re doing what you’re doing anyway,” says Dan Weiner, the co-chair of the personnel committee at Hughes Hubbard & Reed in New York. “To try and put a false face on it is not going to help you at all.” Weiner says the firm hasn’t done and doesn’t anticipate layoffs, though it dealt with the issue many years ago.

Both Weiner and Ashley Brightwell, a labor & employment partner at Alston & Bird in Atlanta (firm name corrected from first version of this post), say that often multiple issues are at play in the decision. “Is it economic or is it performance-related is a false dichotomy,” says Weiner. “If you’re required to trim staff, you’re not going to pick people randomly” he says. “Expensive people who are underutilized” are the ones firms look at first.

“A lot of times the decision is easier because you?ll know that a certain practice group is one you need to cut,” says Brightwell. “But if you?ve got a group of five that are relatively equal in terms of seniority and background, then it comes down to performance.”

The trick for a firm, says Brightwell, is to have solid documentation to back up a claim that a termination is performance related. “I would never advise someone to say it’s performance-related when it’s not.”

LB readers: Should firms be as worried as they are about the reputational ramifications of layoffs? What’s the best communication policy when the firings have to get done?