Intro: 00:00 Human resources, employee relations, the legal department, are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you but unlike the company, you've not been drilled on how to wield them. You're playing catch-up. There are pitfalls to avoid and countermeasures to deploy that may save your job or put you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted at work. Knowledge is power. Let's get started.
Sound Clip: 00:51 You heard of this thing, the Eight Minute Abs? Well, this is going to blow that right out of the water. Listen to this, Seven Minute Abs. Unless of course somebody comes up with Six Minute Abs, then you're in trouble, huh? No, no, not six. I said seven. Nobody's coming up with six. Who works out in six minutes? You won't even get your heart going. Not even a mouse on a wheel. Good point. Seven's the key number here. Step into my office. Why? Because you're fucking fired.
Robert Ingalls: 01:23 Welcome to the Walking Papers podcast. I'm your host, Robert Ingalls And I am here with attorney Josh Van Kampen, the captain of the ship here at North Carolina employment law firm, Van Kampen Law. Today, we're going to be talking about termination meetings, how to be prepared, how to comport yourself during such a meeting and what to do and not to do after the meeting. Today's episode is titled, Step Into My Office, You're Fired. Your manager has the script, here is yours. Josh, tell us about that.
Josh Van Kampen: 01:55 Gosh, Something About Mary, have they made a better comedy since then? And just thinking about that scene and remember it was about the Seven Minute Abs versus Eight Minute Abs. And yeah, but you got a problem if they come up with Six Minute Abs.
Robert Ingalls: 02:10 You can't do it in six minutes.
Josh Van Kampen: 02:12 Right. That's an iconic termination scene. Sorry, folks. I know it's we're off for a year right now, but hopefully a little levity will help you as well. But on these termination meetings, because I used to represent companies for about six years before I started representing individuals, they orchestrate these termination meetings. Word for word, HR, legal, managers, will figure out exactly what they want to say in these termination meetings and nine times out of 10, my clients are totally unprepared for these sort of meetings and no insight on how to act or what to do, what not to do. And so we're going to arm our listeners today. If you're in this unfortunate situation, which is a termination meeting, we're going to put you in the best possible position.
Robert Ingalls: 03:00 All right. Tell us what to expect if perhaps we're expecting a termination meeting.
Josh Van Kampen: 03:06 Well, usually you don't, their whole strategy is to startle you. Have you ever noticed? I'm sure there are people that are listening this, thought they were going to an evaluation meeting or a one on one check in, you're back in your office, you're typing up your summary bullet points for your accomplishments, you walk in and HR is in your boss' office and you're like, what's HR doing here? And well, you know why they're there, of course. A lot of times folks are startled. And so it's the rare situation where you walk in and you know it's going to be a termination meeting and they don't want you to know because they want you to excuse my language, fuck up or not press advantages that you can and that I'm going to teach you how to do in this podcast today.
Robert Ingalls: 03:52 When you say press advantages, what do you mean? What should I be doing in there? What is the employer's objective in that termination meeting other than to fire you
Josh Van Kampen: 04:03 Yeah. Well the fire you to, to make sure that you don't start throwing desks around. Other than that, it's really it's to do no harm to themselves. They don't want to say anything in that termination meeting that is going to compromise their legal defense, if you see them. And so that's why they literally have a script for exactly how they want to characterize your termination. Obviously they want to have a witness in there, that's why there's always two people and they want to provide as vague and squishy a reason as possible for the termination. The way that you prove discrimination a lot of times is by disproving their reason for the termination and that's called establishing pretext. In other words, that the reason is bullshit. And what the employer says in that termination meeting is a stake in the ground. You were fired for this reason. And guess who's going to attack that iteration of that reason later in court? That's me.
Josh Van Kampen: 05:09 And so they don't want to put their foot in their mouth or say something that will cause trouble later so they're going to try to say as little as possible, as vaguely as possible. Now, a lot of times listeners will say, "But they have to give me a reason. Legally aren't they required to give me a reason?" No. No they're not. And they can give you a vague reason if they want to or no reason at all. But if they do give you no reason, I kind of liked that in a way too, because it shows, why are you hiding the ball? If this was a valid reason for termination, why are you not telling them why? That ain't right.
Robert Ingalls: 05:44 Now you're making up the pretext possibly here today in court.
Josh Van Kampen: 05:46 Oh yeah. They're going to come up with a reason later. You're absolutely right, Rob. Their objective is to basically do no harm to themselves in that termination meeting and get you out the door as quickly as possible.
Robert Ingalls: 05:58 What can I do to perhaps punch some holes in this strategy of theirs in this meeting?
Josh Van Kampen: 06:04 Yeah. I created an acronym, not very creative, but I did. It's RAW. I want you to remember R-A-W. R for rationale, A for argue and W for who. Let me break down those things. Rationale, you will press them for a reason and insist on it. I gave 10 years to this company, sacrifice, blood and sweat. I'm entitled to know why, what did I do wrong? And you'd be surprised. A lot of times you will shake fruit out of a tree by doing that. Because even the manager is saying to himself, "He does deserve a reason." And he does, it's just decent. And so you should insist on the reason why you're being terminated. And then so that's the rationale. Get the rationale and then A, argue. Start arguing against why they say that they fired you and make your case, but argue without being an ass. Even if we have an awesome case to prove retaliatory discrimination for example, if you have acted disrespectfully or insubordinately and your termination meeting, they can well lose because they'll say, "Well, even if we were wrong about the first reason for the termination."
Robert Ingalls: 07:30 Look at this.
Josh Van Kampen: 07:31 "We sure as hell can fire him then because he was disrespectful and insubordinate." You're going to argue with grace and be really careful that you don't shoot yourself in the foot. How do you argue your case in a termination meeting? Well one, employment record. If you worked there for 10 years and you've never been written up, point that out. If you are aware of coworkers of yours who were allowed to get away with a whole lot more than you or were poor performers or weren't terminated, you should absolutely start saying, "Well yeah, what about Joe Schmo? You didn't fire him and he did something worse than I did. Can you explain that to me? Why I'm being fired and he wasn't being fired?" Also, you can argue about the lack of loyalty that they're showing. That can sometimes prompt them to say, "Well, Bob, the reason why we're not loyal is because you did such and such." We're getting them talking, even as you're arguing, you're not really arguing to convince anybody. You're arguing to get them to keep talking and defending why they terminated you.
Josh Van Kampen: 08:39 And then the last thing, if you want to give me a cherry on top as your lawyer is that if you believe that your termination is discriminatory or retaliatory, say it, because if you don't say it, the management lawyer is going to say, "Well Bob, isn't a true on your termination meeting, you never alleged discrimination. It was only after you spoke to your attorney, Mr. Van Kampen."
Robert Ingalls: 09:00 That you concocted.
Josh Van Kampen: 09:04 "That you suddenly concocted this retaliation theory." Please let me shut him up by if you believe it, say it. And of course, they're going to say, "That's ridiculous. We would never discriminate. We have an equal employment opportunity commission policy that says we don't." Yeah, so if you can remember to do that, that's a cherry on top for your lawyer so please do. And if you can think of explaining why you think that too, go ahead, but most important though, is to at least say that you're concerned or you believe that it's discriminatory.
Josh Van Kampen: 09:37 And then lastly, the W, RAW is who. It's really important in cases later to identify who the decision makers are because when we're starting to prove discrimination, the way that we do it sometimes is by showing that there were what are called legal comparators, who are your coworkers, who did something worse and weren't fired. And in order to determine who a valid comparator is, you need to know who the decision makers are.
Josh Van Kampen: 10:07 And sometimes companies really screw up with their decision makers because if they, let's say somebody to up the management chain is a decision maker and now it's my job to prove double standard across comparators, I got a huge tree roots down from that upper level manager of other people that we can point to and say, "Oh yeah, but Joe Blow did worse." He may not even be in my client's department. Doesn't matter because the decision maker, it was two rungs up and it encompassed other departments. And so, we've argued that in court and called it the decision maker tree where we're going to go down and the higher it goes up, the broader the branches are out and the broader the universe of comparators.
Robert Ingalls: 10:52 Got you. All right. We've been through this meeting and we've attacked their defenses and now it's over. One of the things, if you've ever worked in an office you've probably seen this, is the perp walk. That kind of walk of shame where security escorts you out. Is that something that you have to subject yourself to?
Josh Van Kampen: 11:13 Yes. I get infuriated. It's hard enough to be fired from a job, especially one that you worked at a long time then to be treated like you can't be trusted and oh, he may steal a stapler or oh, he's going to get this off the laptop. And you already don't feel like a person after you're fired and when you're treated like that, they look at you as a criminal and it hurts. Folks, it hurts. Everybody hurts. Try not to take it personally because this is the procedure, even though it's ridiculous and know that if we do go to a trial later, juries don't like that. And I will make ample use of that decision when I'm cross examining decision makers about why that was necessary.
Robert Ingalls: 11:59 It looks good for you if you behave well while the jury infuse them as perhaps behaving poorly to you.
Josh Van Kampen: 12:05 Yeah, be the consummate professional on the way out even as they're acting really unprofessionally in how they're treating you.
Robert Ingalls: 12:12 Yeah. Is there anything else I need to be thinking about after this? I've left the premises. Going to be probably quite a bit upset. Are there decisions I need to be making or not making in the wake of this?
Josh Van Kampen: 12:26 If we file a lawsuit, you are going to be deposed for probably an hour just on what you did and said on your termination date. And people have a lot of really bad instincts about what they want to do after a termination meeting, all of which are very harmful to your case.
Robert Ingalls: 12:44 You're angry.
Josh Van Kampen: 12:45 You're angry and you want to be heard and not all of these are fatal, but understand that every text message that you send on termination date to your wife, to your best friend, to your mom, to your dad, siblings, et cetera, you are going to want to vent. You are going to want to say horrible things about these people. Those text messages are going to be discoverable.
Robert Ingalls: 13:07 And they might be read in court one day.
Josh Van Kampen: 13:08 Yes, sir. Just call. Don't text about your frustrations. Just talk about your frustrations.
Robert Ingalls: 13:15 Say it out loud.
Josh Van Kampen: 13:16 It's better anyway and safer because you're going to be driving. You shouldn't be texting anyway. That's one thing. And then once you get home, a lot of my clients, they want to write a letter to the CEO or call the ethics department and say, "This happened to me." And that's not normally a bad thing, if you're not going to file a lawsuit but at that point you haven't consulted with your lawyer. You don't know the theory of your case. You may get something wrong in that document and guess what? Who here raise your hand as you're listening, thinks that the CEO is going to intervene and say, "You, my management team are wrong and I'm going to reverse this decision." Why do it? It's not going to change anything and the ethics department's no different than the HR department. They're just there to vindicate. Don't waste your time, just verbalize your frustrations and go talk to a lawyer.
Robert Ingalls: 14:16 Got you. Throughout this episode you've been mentioning things coming up that you said or that were said in certain meetings, how do you ensure that you properly remember and are able to articulate these things when the time comes?
Josh Van Kampen: 14:31 You mean in the termination meeting?
Robert Ingalls: 14:33 Sure. Things are said there. Should I be making notes of this? And then when I'm talking to people, take me through that.
Josh Van Kampen: 14:40 Yeah. Well, let's start first with to record or not to record your termination meeting. And this assumes obviously you know that it's, because you're not going to say, "Hang on a second guys. Let me get my phone out, you want to record this." That's the Fargo reference. In the last podcast, I explained that I was addicted to Fargo. Whether to record or not, it depends on what state you're in. In North Carolina, it's a one party consent state. The general rule is that you can record a termination meeting even if the other side doesn't know that you're recording legally so you're not going to get in trouble for it as long as everybody's in North Carolina. But that doesn't mean that it's a good idea. You need to also consult the employee handbook or policies of the company.
Josh Van Kampen: 15:33 If the company has a policy that says that you are not authorized to record anything without the other party's consent and you do that, in your termination meeting, you're still an employee. And so at that point you have violated the company's policy and so then at that point, the management attorney is going to argue what's called after acquired evidence rule and say, "Judge, even if we lose and they prove discrimination, we should still have no liability for damages or back pay because we had grounds to fire him in the termination meeting because he violated our policy." And the law on that is mixed, but I don't want to be in that pickle. If the policy says you can't record, don't record.
Robert Ingalls: 16:19 Got it. And so let's say that I am talking to some of my prior co-workers and they're telling me different stories and are those things I need to be documenting as well?
Josh Van Kampen: 16:31 Yeah, definitely. If you're a good employee, which most of my clients are, you are going to have your allies and colleagues from the company and also even customers from outside or vendors call and say, "This is so ridiculous that this happened." Those are potential witnesses down the line. Their spontaneous reactions to your termination are authentic and juries give a lot of weight to them, so do judges and so we want to document those. If that's via text or email, get them talking. Reply, even though normally you might not want to, Oh, I shouldn't communicate with people. If they're praising you, talk to them. Keep those text messages or emails. If it's verbal, then take contemporaneous notes. We've talked so much about contemporaneous notes. Love them. You should do that if your coworkers call, you should also make contemporaneous notes of your termination meeting itself, using quotations for exactly what who said what and those meetings. You want to harvest all that goodwill and spontaneous reaction from your coworkers.
Robert Ingalls: 17:41 Perfect. All right. We have over a lot of ground here today. Thank you Josh for your time. And thanks for listening.
Outro: 17:51 Congratulations for taking an important initial step in turning the tables at work but this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at ncemploymentattorneys.com or better yet, call <a href="tel:+17042473245">(704) 247-3245</a> for a free initial intake interview so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.
