Bsrgvty

Inspired by this answer and a comment

...So he becomes a manager, is really bad at it, gets fired...

In the original question, an employee was denied a promotion and turned sour. The company is (currently) looking for a way to get rid of them without paying a substantial severance package.

So the comment got me curious.
Can a company promote you into a position you aren't qualified for, then fire you for-cause for under-performance? Sounds too convenient. In this case, the employee in question also expressed interest in the position--does that change the answer?

The additional assumption I'm making (that may be wrong) and the reason for this question :

• "For cause" instead of "no reason" has implications. Namely, unemployment and in this case, an effect on the massive severance package
  

The comment suggests that promoting someone and then firing them for-cause is a way to avoid paying the severance package.

This is a huge, horrible mess.

Promoting you to make you fail is called constructive termination

... And it's the oldest trick in the book. A company can't get someone to quit, and can't lay them off (for some reason). So they setup the employee to fail.

• they send him out on an urgent job with a minor piece of safety equipment broken, then fire him for not using adequate safety equipment.


• they send him to do the impossile, and fire him for failing (every manager trying to clean up Larry Nasser's mess at MSU and USOC).

The upshot is that instead of doing what they're actually doing: lay them off (the UK says it elegantly: "make them redundant"), they are constructing a fiction where the layoff is in a different category than it is.

"But it's at-will employment. There's no difference!"

Several people make the point that most employment is at-will, meaning no complications like tenure, union grievance process, etc. So no difference between layoff and firing: if you try to argue the firing, they just say "OK then, you're laid off lol". You're out the door just the same. That is true; gold star for you.

Therefore, constructive termination should be irrelevant in at-will employment, yes?

The difference matters to a bunch of things. Unemployment pays on layoff; it doesn't pay on firing. Contract provisions that provide all sorts of compensation features upon layoff, from pensions to healthcare to stock options, probably do not apply on firing.

And in the instant case, that is exactly what we are dealing with here. For whatever reason, the referenced OP has a $750k golden parachute. The entire point (for the employer) of constructing a termination (contriving a firing) would be to deny the employee the nearly million dollars of compensation.

My rule of thumb is that $9000 is the threshold point where it starts becoming worth getting lawyers involved; OP's case is two decimal places from that. Everyone should expect that every single thing that happens here will be closely scrutinized by lawyers. If I were OP, I'd be Comeying the hell out of this with a daily diary of events, and be on a first name basis with my local notary public. You can bet the company is (if they're not, their lawyers suck).

Fraud is a big deal too

So yes, they can fire OP for having a big nose. However, that will count as a no-fault layoff in every way that matters. So suppose that happens, either a) the employee says "oh noes, they fired me so I lose my benefits" and they don't ask for them; or b) the employee asks for them anyway. In which case the company says c) yeah that's fair, here they are, or d) you can't have them since we used the word "fire".

If the company wins on a), they get $750,000, if they lose on d) they lose $0. It would be an all-win, no-lose situation for the company, which means it would become their fiduciary duty to stockholders to try to make that happen every single time. c) would be out of the question, simply throwing away stockholder money without trying to keep it.

At d), we arrive at fraud. The company is falsely saying it's a firing, to deny benefits, i.e. To profit from deception. The law deters that several ways, and in some jurisdictions, one way is to inflict triple damages. So it changes the economics for the company.

If the company wins, they get $750,000. If they lose, they lose $1.5 million.

Now they can tell the stockholders "See? See? It's not negligence to treat employees fairly, because cheating them is such a bad gamble!"

I don't know if the unemployment office goes after employers for treble damages. But you can bet private attorneys will on the severance. Especially if they are operating on a contingency (typically 1/3). Do they want 1/3 of $750k or 1/3 of $2.25M?

So, it's an old trick. Unemployment judges, civil judges and lawyers have seen it many times before. If the employer wants to get clever, he might find himself too clever for his own good!

Can you be promoted and then fired for-cause?

The "for-cause" part in the US is mostly irrelevant. Almost all states have "at will" employment so you can leave or be terminated for any or no reason at any time. In the US there are far easier and direct ways to get rid of an unwanted employee than staging a mock promotion.

This being said, it's a pretty common event that people get promoted above their skill and comfort level. Unfortunately that happens fairly naturally and often with good intentions: you are good at something and so you get promoted. That cycle continues until you stop being good and you are stuck at your first level of incompetence. It's sometimes referred to as the "Peter Principle". https://www.investopedia.com/terms/p/peter-principle.asp

It's not an easy situation to recover from: you either need to take a step down again, figure out a way to get up to performance, side step it somehow, or leave. All of these are very problematic.

The moral of the story: while promotions are touted as the ultimate career goal you should look VERY carefully at the requirements of the job and how you stack up to them. It can easily backfire.

To be fired for-cause requires generally the satisfaction of one or many criteria including:

• Dishonesty (including theft, fraud, deception and breach of trust)


• Conflicts of interest


• Inappropriate relationship (with boss, junior employee)


• Insolence or insubordination (disobeying a boss, acting rude or abrasive)


• Breach of important rules or policies


• Theft or fraud that’s work-related


• Harassment or violence in the workplace


• Abuse of technology (misusing an employer’s equipment, abusing social media)


• Performance issues that amount to gross incompetence


• Off-duty conduct that reflects very poorly on the employer


• Non-disclosure of a serious illness in a job interview


• Absenteeism and lateness (persistent, without a valid excuse)

Being fired for-cause when being challenged in court puts the burden of proof in the court of the former employee that they did not in fact do what the company claims they did. This burden is quite high.

In the linked case, the employee if they caught on to the ruse, and certainly any good lawyer would too, could easily show that the company had acted in conspiracy against the employee to set them up for failure to avoid paying out such a large severance package. In fact the severance package is so large that I can’t see this company getting rid of the employee via for-cause and it not look like a conspiracy to avoid paying it.

To be more general, a promote-review-fire technique is certainly a possible one, but if its too easy to see as a conspiracy by a lawyer -if the employee took the company to court- it probably would backfire.