Hiring and Firing Protected Classes

Business Brain the Show for entrepreneurs episode 433 for Wednesday, March 22, 2023 greetings folks and welcome to Business Brain, the show by, for and about entrepreneurs. It's the show where we use our business brains and apply them to anything we can in our lives to help give us a little bit of an edge, to help give us perhaps another way of looking at stuff, another way of analyzing things, because we find that our business brains are helpful and it's helpful to get together and do this once or twice a week. Sponsors for this episode include Thinkific, which is a new sponsor. Thinkific plus is this powerful training platform that lets you create materials and seminars to educate your customers so so they stay being your customers and you get a month free@thinkific.com businessbrain we'll talk more about all that in a few minutes. For now, here Back here finally in Durham, New Hampshire. I'm Dave Hamilton.

Good to have you back. This is Shannon Jean. I'm still out here in Lafayette.

It's good. Yeah, man. I have no plane rides booked and I couldn't be happier. That will change, obviously. Sure, but, sure, but it's, it's nice to, I mean, I traveled a lot and I actually, I have some thoughts to share about working, especially for the last 12 days on a travel schedule and, and actually how, how I applied my business brain to that and, and came back without too much of a pile on my desk. But the first thing I want to do is get us canceled, if that's okay. Shannon. Can I do that?

Oh my gosh, you're making me really nervous, dude.

So we got an email from someone who is not going to put their name on this. Mr. X or Mrs. X. I'm actually not sure. I don't even have their name in front of me saying, hey, thanks so much for the podcast. This is a comment on the ESG episode from March 3rd. Perhaps it's too late to comment. It's not. But I did have a thought as I do struggle with that I struggle with. On the diversity part of all of this, I'm not sure this is even something you can use or talk about without getting a lot of folks up in arms. Yeah, well, we're not sure either. But like, yours is not the only email. Yours is just the one that, that articulates it the best, Mr. X. So it's always interesting to hear about it from the American context. And Mr. X says, I am a standard, run of the mill, no frills American. However, he says I work with global teams. So I deal with racism between people every so often. Think Japanese and Koreans or Chinese on the same teams, both remote and global. In the US everyone plays nice and mostly gets along. But when folks are in their own context, that's not always the case. Case. Hiring managers and staff while dealing with the Indian caste system, for example, can be very difficult. Hadn't even thought of that about that.

Yeah, yeah, he says.

But in, in the American context. Here is the issue. I work in technology and as you know, there are now many good jobs that do not need a college degree. I will get folks, friends of friends, spouses from other departments, etc that say, hey, I don't have a degree but I took these online courses or I practice on my home systems or I have this experience in some way and, and I think I can do the job. I just need a chance. And as Mr. X continues, there are a lot of times, especially over the last few years, where that can be an attractive option. The issue is if this is a young white guy and it does not work out, we can part ways and no one cares if this is a person of color, someone over 45 or another protected class, that is a much different decision. Because if it does not work out, the separation process is far trickier and fraught with issues in even if you have a well defined probationary or intern policy. I know that's touchy, Mr. X continues, and people won't talk about it out loud, but that is a side effect of the current culture and our litigious society. In fact, to that point, if you do talk about it, I would rather you not use my name.

Of course.

So that will end Mr. X's comments from from here on out is, is when you hear me talk, it's me. And of course Shannon is Shannon.

Yeah. One thing I like, I think we could frame it as let's talk about what he referenced as or he or she Mr. And Mrs. X. I'm calling it Mr. X. So we'll just Mr. X as a protected class. Okay. I think that is an interesting concept to discuss it and to think and I think you have to kind of set some ground rules of, you know, we view everybody as individuals. Comments, generalizations don't apply to everyone. Every person is unique and awesome in their own way.

And it would be also not awesome in our own ways too.

That's right.

I have my weaknesses too.

Of course.

There are things, There are most things I can't do, it turns out.

Yes, yes, yes, that's right. Yeah, that's Right. But I think this is the thing that makes me so itchy about this topic, is what makes me want to talk about it, but also kind of scares the heck out of me. Talking about it on the podcast is that for a subset of our culture, you're not allowed to talk about it. You know, you're branded a certain thing. If you do discuss a quote protected class, and there's lots of phobists and this and that, that you could be branded that. I think, again, some people, not, you know, some individuals use that as a tool to stop the discussion. And I think it is a valuable discussion to have, especially for business owners and even for people that work together and managers and, you know, it's something that we're going to have to figure out a way to talk about it, I think. And maybe talking about on the show.

Is the beginning of that. Yeah, to get started. I don't know the magic answer. I mean, like, there's the standard advice that comes to mind, which is, you know, have solid policies at your company about, you know, how you hire and more specifically, how you fire or let people go. Take copious notes, log everything. If there's a reason for terminating someone, make sure you can articulate that even if you're not, you know, we've talked about it on our firing episodes or letting people go episodes, hiring, firing, whatever, where it's best not to get too detailed on the day that you let someone go, you certainly don't want to sit there and, and say, I'm sorry. In fact, no, I was in an elevator in Las Vegas and someone, two people were in the elevator, and this one woman was saying to somebody else, like, well, could you fire him instead of me? And, and I, I just, like, I, I, I, I mean, obviously I could hear the conversation because I'm right there. You know, they knew that I could hear this. Of course, I don't know who these people are. I have no idea who they, who they work for, you know, who they.

Were going to fire.

But, but they were comfortable saying this in front of me, and I just said, you know, it's never easy. I said, I hate it. I said, I've done it many times. I hate it. And, and the woman asked me, you know, as the clock is ticking, because we're coming up to our floors where we're going to part ways for presumably the rest of our natural lives. And she says, do you have any advice for me? And I said, yep, don't apologize. Keep it simple.

Never apologize.

And just to the point all business. No apologies. You will be tempted to apologize. I said do not give in to that temptation. Right, right. So. But on your own, on the back end, making those copious notes, you know, sharing them or logging them in a way that it's clear that you did this at the time, you know, as best you can. So that if and when there is a question asked of you, why did you let this person go? You can articulate it. Now, if it gets so far as to people, you know, saying, oh, you know, you hired, you fired this person because of their color of their skin or their age or, you know, any one of these. These things that are and should be protected and should not ever. Right.

It's illegal hire or fire based on that.

Correct. With. You know, but, but as many a canceled person has said, you know, if, if you have to tell someone you're not racist, well, you've already lost.

Yeah.

Like, you know, if you're defending this, it, like that's a, That's a. In, in. In. In a lot of circumstances, it, it becomes a guilty until proven innocent, at least in the court of public opinion. And, and that can be really dangerous for a lot of reasons. And, and it's a tough thing. But. Yeah, I wish I had the magic answer here. I mean, like I said in the episode when we were talking about it, I, you know, I, I've never thought about this when hiring someone, but as I look at our past, we've hired people that, that would, at least in today's world, check all kinds of boxes that, that would say, you know, diverse history and this, that, and the other thing. But that's not why them. Right. And so it just didn't come up. And it's never been why we fired somebody. I mean, I think I've talked on this show about each of the people that I've had to fire over the years. Thankfully, it hasn't been that many. That in eight years of the show, I've probably been able to talk about every one of them. I've never mentioned my name. And you'll notice that if you go back and find all those episodes, I can't imagine you would find anything that implies that it was because of their gender or, you know, the color skin or any of that.

But.

Right.

But.

But, you know, thinking back, it's like, okay, well, you know, I've, I, I'm always worried about my reputation because I, I mean, we do this like my. I talk for a living. Right. So it's, it's important for a lot of reasons to have a, to be trusted out there. And so yeah, it's a lot to unpack.

There's. There's a lot to unpack here. And um, I think we should talk about it some more There. There's some, I think some tips to help you avoid getting down that road that we could discuss here related to having to let people go. But maybe the most important thing I, I could get across real quick is when you have to, don't forget, when you have to fire someone, it's your failure as manager always. Either you always your failure. You either hire the right or hired the wrong person or you didn't train them correctly.

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Yeah, I want to hear it. I think it's, I think it's great.

Yeah. But we're down this path of, of advice about hiring and firing and protecting yourself. I think let's kind of take that tangent off of our first discussion and explore that a little bit to wrap up this episode.

Yeah. And I think there's a way to have the discussion and not have to focus on a particular quote protected class or anything like that.

No, agreed. Yeah.

And I think that's very helpful and useful for us as business owners. And I think you could really back it up all the way to your hiring process. And, you know, there's a saying, hire slowly, you know, and fire quickly. Yeah, I really believe in that. And we, you know, when I was just getting going my first company and hiring people, I made a ton of mistakes and hired a lot of the folks that I should not have hired. And you know, I was at age where you think, yeah, you think your friends are going to turn out to be good employees, all that stuff, that's usually a mistake.

Yeah. I think half the people that I've fired have been because I hired the wrong person.

That's right. So this hire slowly mentality is something that I really would suggest you lean into and think about ways that you can really get to know someone before you make that job offer. You know, either in a casual environment. You know, Dave, you talked about going out to, you know, a restaurant or food with them and seeing how they interact with the, the wait staff, which I think is awesome because that tells you so much. We went so far and I've talked about on show a number of times starting an intern program that gives you time to explore people's personalities and their, their work ethic and how they interact with other people, because that's really what is, you know, is going to make or break them at your, at your business and maybe make or break your business.

Yeah.

But if you give yourself, you know, we had 100 hours with each of these interns and it became our hiring pool. And in effect, a 100 hour job interview. And there were, you know, just some awesome people. But at the same, on the flip side, there was folks that, you know, that I would, I just ran away from. I would never offer a job because I saw the way they reacted to people and the way that they didn't complete things or wouldn't take on tasks. And so I think you can avoid a lot of this by really getting to know individuals better. If you can structure. Because the interview doesn't tell you much.

No, it doesn't tell you enough. Yeah. I do have one question that I ask interviewees when they get to the end and I think I mentioned this in a very recent episode, so I'm not going to explore it too far. But that's the question where I say, tell us something you're nerdy about. And it's a great way to just see how this person's gonna be during the down times. Like, what are they gonna talk about? How do they talk about things? Are they able to be passionate about stuff? Like what, what is it that you're nerdy about? We're all nerdy about something. And it's gonna come out like if you work together long enough, you're gonna learn people's hobbies and interests and that's fine. Like that's a good thing. So let's get, let's do that once. At the very least, let's do it once before we hire you. Another thing is, you know, putting it, making it clear. And this has always felt weird to me because in all the states that I've ever run businesses, it is employment at will. So the idea of a quote unquote trial period is strange to me, running a small business because it's all a trial period. If you want to let somebody go, you just tell them, don't come in tomorrow. And that's a good enough reason unless they read further into it. See the first half of this episode. Yeah, but the, you know, saying out loud, There is a 90 day trial period and you, I think in. You got to check the laws of your state. Maybe, maybe check with. They aren't a current sponsor, but that company, Bambi B A M B E E would be a good. The HR stuff. Yep. Find out, you know, you might be able to defer putting people on the corporate health Insurance or the 401K or all of that during their trial period. Right. Like that might all kick in afterwards. I don't know. You have to check what's legal and what works for you. But even if you, even if you are going to put them on the health insurance right out of the gate and all that stuff just by saying, look, it's a 90 day trial period and this works in both directions. We need to make sure that it's going to be a good fit and that we both want this to continue. That sets a tone of. Okay, let's. This is like you said, this is the, you know, the the 100 day interview or the 90 day interview, it's, it can be super valuable.

It can. So I like, I like your nerdy question. My version of that is, tell me something unique I'll remember about you. Because we're gonna, you know, we're interviewing 20 people or whatever for this position. What should I remember when I look at your, your name or, you know, that kind of thing?

I like that one. Oh, that's great. Yeah.

What is the one thing? And you get people to open up and I think that's great. I also really like having them come back and working with your staff for a day. You know, if, if, if you get that opportunity and you can pay them and get some kind of compensation for it, of course, but have them come and not work with you. Number one, you should have other people in with the interviews. Especially if you're, you have managers and supervisors, they should be in there too. Never interview alone. Of course, you already know that. And of course never let anybody go alone in the room. But having them come back and work with your staff can really give you some interesting insight. I've had people not show up. I've had people make it, you know, about half the day and come in and say, oh, you know what? This isn't for me. And I've had people that have been like, wow, I loved it. Had such a great experience and, you know, so you get a chance again to get to know them first. I'm trying to avoid the issue altogether of you having, as a business owner, having to be nervous about letting someone go that may be in some, some protected class. And those protected classes change over time. Right. For many, many years in the past, there was other people that were in the protected class and other people that were treated like garbage. And I understand that we, we want to give everybody, you know, this great chance and all that. It's wonderful. But do your homework. And I think if you spend a lot of time or more time up front, you can avoid a lot of those, those issues altogether.

Totally, totally. Yeah, yeah, no, I, I couldn't agree more. Yep.

But it is. And, and I, again, I think that having one of the things is getting involved in peer groups, other business owners that you could share some information, some these discussions with, be able to talk, you know, you're listening to this show, you obviously want some feedback and input.

Yep.

You need to be able to have these discussions, whether it's with your board of advisors that we've talked about over the years, your attorney, your accountant, your.

Whoever, if you don't have anybody check out score.

Yeah.

Yeah.

Score is great.

Score.org. yeah.

Yeah. And. And the way you frame it is important because you could just say, look, I want to be sure we treat everybody equally. How do I set up a hiring and. And firing process to protect the people that work for me and protect me? And that's a. A really valid question because you, you know, and I'll go back to something you said earlier about sitting down.

Don't put any words in my mouth. No, no.

Yeah, yeah. But. But that. That critical thing about not apologizing, that's very important. Even though you may feel bad, but hope certainly by the time you get to that point where you're letting them go, you've given them the opportunity to correct issues that they may have.

Yes.

That's really important.

If it's a surprise to them that you are letting them go, that's your fault too.

Like, you're opening yourself up.

They may not be happy about you letting them go. I.

Right.

In fact, I would be surprised to hear. I'm sure there are, but, you know, they would be the exception. The stories of people that are like, thank you for firing me. You know, it's not going to happen. But. But they should not be surprised. They might want to act surprised. But. Yeah, again, that goes back to document, you know, not just why you let them go, but. But also when you warned them in, you know, ahead of that. Yeah.

You had a meeting and you said, hey, this is a problem. Here's the corrective action we'd like, you know, we expect you to take. Here's the timeline that we expect you to take it in. If that doesn't happen, then you meet, you know, hey, we just want to let you know, this is the. What's going on, and you document it and you put it in a file and, you know, you have to protect yourself and you also want to give them the opportunity to correct. If it's. They may not even know.

Yeah.

What. What the issue is. So I've. Many times I've thought, oh, man, this person is just not gonna get it. But once you maybe, you know, get someone to help mentor them and correct their issues, especially if it's things like getting to work on time or all these kinds. There's so many ways to. To correct that and to help someone.

Yeah.

Become. Become a better employee. Part of the responsibility of being a business owner or, you know, in some cases, it's a manager that you have. But think it through. I think a lot of this stuff can be avoided, you know, initially who you hire, you know, how you train them, how you onboard them. Very important that they get connected to your businesses, in your culture and your community that you've developed over the years.

Yep.

If someone's on the outside, man, it's, it's much easier for them to get angry, no matter what type of person they are, what type of individual, and try to cause problems for your business, especially in this day of social media and all this kind of stuff. And so you want to treat everybody with respect, you want to make them part of that community and help them, you know, be successful. And if they're not, work on those corrections and, and if you can't, it doesn't work.

If it doesn't work, then, then, you know, you let them go. I've, I've literally had conversations where I've said, hey, look, we, your current path is going to wind up with me having to let you go.

Yeah.

I want to work with you to see if we can change that path together. And that's a fine conversation to have. I mean, you don't want to have that willy nilly like you, you like, you need to be telling them the truth in those scenarios like, hey, that if this doesn't get fixed, you gotta go and I'm gonna need to let you go. It's not working. But you're offering them the opportunity and then log that down somewhere in their employee file so that you have it and even say, hey, look, we've had this conversation, I'm gonna summarize it and send you an email. I need you to reply that you've received the email.

Yeah, that's a really great idea and I like to flip it on them too and say, what, what can I do for. What can we do for you? What tools can we give you? What training can we offer you to help solve this problem? Yeah, because you want them to be engaged in it. They're just telling me this. No, no, you tell me because maybe I'm missing it. Maybe, maybe you probably are. Yeah. I guarantee you my perspective is very different than the person I'm having, you know, an issue with so getting them. Because they may come up and say something that just blows your mind and says, oh, oh, okay, well we can fix that. And then again this, I love this idea. Hey, I'm going to follow up with an email. Please respond that you received it and, and then you can document it next time you get together. Say, hey, you asked for these things, we did it, but we're still having this problem or, or hopefully you'll be like, wow, you know, you asked for these things, we did it. And look how much better things are. So let us know what you think, what, how you've dealt with these issues, what your process is, and how you frame it with your employees. Feedback at BusinessBrain show.

And that's where Mr. X sent their email in. And yes, Mr. X, you are entered into the drawing for the MacBook Air here that we will do this year. Just because we didn't say your name on the show. We do know who you are and we will keep that private. But, but you are entered into that drawing, folks. You can be entered in, too. Send in your stuff. Feedback at BusinessBrain Show. We'd love to hear from you. Keep you living that charm life. We'll see you next time.