Forty years ago my brother “caught” a foul ball hit by George Foster of the Cincinnati Reds. I remember it like yesterday. We were sitting in the blue seats located in the lowest section at Riverfront Stadium. George hit a towering fly ball behind home plate and it was coming right at us. It went over our head. Fortunately, a man sitting in the row of seats directly behind us dropped the ball. The ball then rolled under my brother’s seat. My brother quickly dove down to grab it. He was immediately squashed by a very heavy-set man sitting next to him who also tried to get the ball. There was a short fight for the ball. The man was peeled off my brother. Amazingly, my brother came up with the ball. I felt like I had won the lottery. We usually sat in the red seats located in the top few rows of the upper deck somewhere in the outfield. The chances of catching a ball in those seats were less than zero. In fact, this was the only ball we ever caught.
We both treasured the ball. To have a game ball hit by a team member of the Big Red machine was a bid deal to us. The ball was proudly displayed on a mantle with our sports trophies. Fast forward a few decades later when my nephew, in his infinite wisdom, took the ball outside and played with it – apparently in the street. He scuffed the ball and ruined it.
A few weeks ago, the event came full circle. I was visiting my family in Cincinnati. My brother, my nephew and I went to a Reds game against the Red Sox. When we entered the ballpark, we saw George Foster sitting at a table wearing a Reds jersey. George was signing autographs to raise money for a charity. My brother joked with George and told him the story about the foul ball he hit and my brother caught. George was friendly and seemed amused by the story. He displayed a good sense of humor and chastised my brother for not taking care of the ball.
I had George sign a photo. I then placed the autographed photo in a plastic bag that held the peanuts I bought outside the stadium. George didn’t like that. He was concerned that the autograph would get ruined, so he had me put the photo in a separate bag. We took a picture with George and then took our seats – like old times, in the upper deck in right field. I carefully placed the bag with the autographed photo under my seat.
The Reds led the Red Sox 2-0 through six innings. The autograph coupled by a Reds win would make for an awesome night. Then the Reds bullpen blew the game, giving up three runs in the next two innings. The Reds lost 3-2. I was so upset about the loss that I forgot to grab the autograph and left it at the ballpark. I didn’t realize my stupidity until I was back at my parents’ house. I was mad at myself for being so absent-minded. Another piece of George Foster memorabilia lost forever.
What I did take away from this story is a simple, but important point: People do not think straight when they are upset. Even though I can be absent-minded at times, I certainly would not have forgotten the autograph had I been in a different mindset. This is a fact that I often share with clients when they are emotional and anxious to make certain decisions.
For employers, it is important to avoid making personnel decisions when emotions are running high. Termination decisions, for example, can lead to lawsuits. Because of this, it is good practice to step back and carefully evaluate whether the decision is sound and will withstand scrutiny. More specifically, employers who are thinking about terminating an employee should consider a series of questions including, but not limited to, the following 15 (In honor of George, whose number was 15):
1. Are there sufficient, reliable facts (e.g., not hearsay) necessary to support the decision?
2. Does documentary evidence exist to support the decision?
3. Are there objective measurements/criteria that support the decision?
4. Did the employee recently complain about working conditions or alleged illegal conduct? Will the decision appear suspicious based on the timing of the decision?
5. Have you examined all the potential legal claims the employee may assert, such as discrimination, retaliation, breach of contract, and unpaid wages to name a few.
6. Have you reviewed how you handled other similar situations?
7. Is the employment relationship at-will?
8. Does an employment agreement exist? If so, have you examined the conditions upon which the employer can terminate the agreement and whether you meet those conditions? Have you checked to see if there is a notice and cure period provision that must be complied with?
9. If the termination is performance-based, has the employee been notified about performance concerns prior to the termination?
10. Does the termination decision comply with handbook policies and procedures?
11. Do you want to offer a severance package conditioned upon signing a release? If so, have you decided what you are willing to offer? Have you decided when you are going to present the agreement to the employee? Do you have a release agreement that is ready to give the employee? Does the release contain all the necessary terms?
12. Did the employee sign a non-compete agreement? If so, do you know if it is enforceable?
13. Have you taken steps to secure company data so that it cannot be sabotaged or stolen by the departing employee? Has the employee’s e-mail and computer access been disabled – both access in the office and remote access?
14. Have you considered whether the employee to be terminated poses a potential safety risk to himself or herself or others? Do you have a plan to address any potential safety risks?
15. Are you able to have a professional discussion with the employee to inform the employee of the termination, or are you too emotional to stay on course?
This is just a sampling of the many questions an employer should consider before making a termination decision. Other important business decisions, such as who to hire and whether to initiate a lawsuit to remedy a business dispute, also warrant thoughtful consideration. When decision makers are upset and emotional, they are less likely to think rationally and run through the checklist of questions that can help ensure the right decision is made.
George, thanks for the reminder, and sorry about the ball and autograph. If you sign a uniform I promise not to lose it.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
