You're fired! Err, not hired. Sorry.

[fire]

So I've got this problem.

Last quarter (we're on a quarter system) I was a teaching assistant for an intro class (enrollment over 100) with an associated lab. Besides me and the instructor, there were 7 tutor/graders, and my job was, for 20 hours a week, to coordinate the grade sheet, make up and assign labs, attend labs, and grade the major exams. (That's more than 20 hours a week, so I didn't go to all sections.)

This summer I'm teaching the same class. Woo! It's my first time teaching ever, and I'm terrified. The enrollment is around 20, so it's not that big a deal, but I got enough funding for a lab tutor.

Mid-way through last quarter I offered one of the current lab tutors, John, the job. We had some e-mail back and forth about how much the pay would be, what he'd have to do, and such. He mentioned that the job was pretty much a requirement for staying in town over the summer, because otherwise he can't afford to. I said sure thing, he's got the job, 100%, no problem.

At the end of the quarter, it became clear to me and the instructor that John was letting some responsibilities slide. Worried about my own class in the summer, I went back and double-checked his work and was disappointed to find sloppy bookkeeping, missed cues of academic dishonesty, and slow (if any) response to e-mails. John didn't comment on student's assignments and progress and give justifications of grades like the other tutors did. He missed some late penalties. He was late in sending me grades (it was just once, but it was late by several weeks). One guy turned in an assignment with another guy's name on it, and John didn't notice. The only incidents of cheating were in John's lab. And though he did follow up on many (not all) of my e-mails, phone calls and AIM with an overworked team of 9 don't work too well.

So I started thinking. It's my first time teaching this summer, and I really need someone that's going to be 100% attentive to the class, both in the lab and in the administrative side. I need someone working with me, someone whose work I don't have to double-check.

I set up a meeting with John and told him of my decision to not hire him in person. I could have done it three days earlier with a phone call, but I figured it was better. I explained my reasoning. He was upset; I apologized for the timing, but my decision was final.

Two days later, John sent me an e-mail saying he was disappointed in my decision and in the way I handled the situation, and he feels that he really deserves that job. I wrote a long reply saying he's a fantastic tutor but his attention to detail has been lacking recently, and reiterated my decision.

This evening, which is three days since the e-mail, I received a phone call from John. To summarize, he said that I promised him the job knowing his financial obligations, and it
is my duty to replace the job which I unjustly took away from him with another job. I asked if he had been to the career center on campus to search for a job; he said no. He feels that he shouldn't have to find a new job because he already had one; he does not agree with my reasons for not hiring him for the summer; hence, my early termination of his employment was invalid. He plans to contact the summer office administrators to see if there's anything they can do for him and to investigate the legality of my actions (that is, of not hiring him).

I admit that it was after Spring quarter, which is well into summer for the rest of the world, that I started double-checking his work and subsequently told him of my decision. And that I knew that he had just signed a lease. But are these my obligations? Am I responsible for my prospective employee's financial situations? I turned away well over a dozen people for the job after telling John it's his. But John didn't live up to my expectations. Am I at fault?

Those of you that know me know that I'm nothing if not too nice. I've been super cordial; I even offered to recommend him to a summer job that he may find (why did I say I'd do that, after all this? because I'm too nice).

Can he really take legal action to ...make me give him that job back? ...pay his rent all summer? Has he even looked for a new job, or for subletters? Why would he want to work with me after all this? I sure don't!

Help me, QT3 hivemind!

[Reldan]

I don't really know what to say. I can understand your reasons for not wanting him to work the position knowing what you know now, but at the same token you really screwed him over. As the boss, you have the responsibility to research the competence of your prospective employees before you hire them. In this case it's doubly puzzling since you were already his supervisor and have experience watching him perform in the very job you hired him for.

Also, citing a lack of competence as a reason to fire him and simultaneously offering to write him a letter of recommendation really makes your position look weak.

I don't know what the labor laws are in your particular state, but there are some states where what you did wouldn't fly and some where it would.

[jeffd]

Did you have a talk with John regarding the issues you had with him, before you decided not to keep him on?

[divorced]

I would also add that if you didn't, you should have established a pattern of misconduct or lack of effort on his part. If he doesn't know he's doing something wrong, you can't expect him to change it. Granted, maybe he should have known, but if you had gone to him 3-4 previous times, documented his job performance and areas he needed to improve and he still didn't, I would have no sympathy for him. But it sounds like he thought everything was fine and you dropped the big bomb on him. it sucks, but it also sounds like both of you learned a few things from the experience.

[fire]

The time frame was really small. Between finding one error which caused me to look for the other errors and having The Conversation with John, 3 work days (5 real days) passed.

And Reldan, I wasn't his supervisor. I was the class TA. The instructor is in charge of the class staff. It was my duty to notify the instructor if I thought something was wrong, which I did. :/

[Rywill]

Whenever there is possible pending litigation, you should be careful about writing out your side of it, especially damaging concessions like "admitting" you waited until such-and-such time to tell him, or that you knew about obligations he had incurred in reliance on your promise. I know, it's posted under the name "fire" and nobody knows who you are. Then again, if a lawsuit ensues and he sends you a Request for Production demanding "all emails or other documents in which you discuss the event in question," now you have to turn it over even though he didn't know it existed. ("Well I would just not turn it over," many people might think, "and how will he know the difference?" Maybe he won't, but -- aside from the fact that it's unethical and wrong -- if you do that and then somehow, anyhow, it gets back to him anyway, you have a disaster on your hands.) Same deal with emailing your friends and relatives. Just be aware that unless the person you're talking to is your lawyer, it's a risk. If the person you're talking to is the internet, it's a bigger risk.

I'm not your lawyer, and not a civil lawyer in any case, so this isn't legal advice. If you want legal advice you should talk to a contract lawyer licensed to practice in your jurisdiction. If you just want to look up some stuff to see whether you might have a problem (you might), the legal doctrine you want to read about is called "promissory estoppel." At its most basic level, what it means is that if you promise to do something for someone, and they reasonably rely on your promise to their detrement (e.g. pay money or incur some other loss, including lost opportunities because they turn down other offers in expectation of taking yours), you can be held to have created a quasi-contract which the other person can enforce.

Having to give him the job ("specific performance" of the contract) would be an extremely unusual result. US contract law frowns upon specific performance, and usually awards money damages instead if that can make the plaintiff whole or approximately whole (the only regular exceptions I know of are in real estate contracts). In almost all cases, though, the plaintiff is responsible for mitigating his own damages, so he cannot hold a defendant responsible for damages he should have avoided once he realized the defendant wasn't going to make good on the bargain. For example, if I agree to sell you a crate of oranges for $50, but then you refuse to pay, I can't just let the oranges rot. I have to try to sell them to someone else.

[Reldan]

Actually, with a bit of Wikipedia-foo, I've found this:

From: http://en.wikipedia.org/wiki/At-will_employment

Covenant of good faith and fair dealing exceptions (aka. "Implied-in-law" Contracts)

Under the implied contract exception, an employer may not fire an employee "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists."[9] Proving the terms of an implied contract is often difficult, and the burden of proof is on the fired employee.


Unfortunately California is one of the states that makes the implied contract exception. Honestly based on what you've described I think he does have a legitimate wrongful termination case here. Your "just cause" for firing him for incompetence is undermined by your offering to recommend him. Also, if you never previously directly spoke to him about your issues and then provided him with a chance to remedy his performance you pretty much have no case at all.

[Rywill]

That's a good point, labor and employment law is even more complicated than contract law and requires even more specialized analysis. I'm not sure whether it applies to your situation or not since John technically never started working for you.

[Greg Williams]

You might be able to slip through a bit since he was never hired, and you never really fired him, so wrongful termination is out. The only other out is to treat it like a lay-off. The biggest issues with following that line of thought are:

1) you offered to give him a recomendation (points to guilt on your part) and
2) You would almost have to say the position is disolved. Problem with that is you have to treat it like a lay-off and cannot re-hire someone for that position.

When you get into verbal contracts and implied work/promotions thigns get very sticky very quickly. Best advice is to follow what Ry said and talk to a lawyer and stop talking to John all together.

[fire]

Whoa, whoa, wait a sec. What if you're interviewing someone, and you tell him Suuuuure, you've got the job, but then none of your co-workers want to hire him? From what I understand, you can totally tell him "I'm sorry, but we cannot hire you at this time. Good luck in future interviews" and call it a day.

[Enidigm]

Can't you ask for some help from the department before going to Defcon 5? If someone has a summer job for him, just anywhere at school, everything is fine. I mean, have him help out in the gym. However by the attitude / behavior of both parties, i'd recuse myself if at all possible and let the department heads sort of it, and if i were a head, i'd rather you not get any further involved. You may have made the right decision academically, but you made the mistake in offering him the job before you looked more carefully at his qualifications. It's better to let them handle the situation then continue to make further mistakes and make the situation worse. Plus, as far as i can see, you don't have the authority to really rectify the situation anyway.

[Sarkus]

Have you talked to anyone at the university about the situation? They're really the ones on the hook if he sues, not you. Maybe the professor you TA'd for can help?

Once he goes to the university you will probably be called on to justify your actions. That may or may not reflect well on you.

[Adree]

I’m reminded of Dante’s Inferno, where the author passes through hell to reach heaven. Doing this is a very bad idea.

For me the trip took place from 1997 to 2000. I was becoming utterly disillusioned with both the educational system and American society and was very angry about my Usenet experience, which I thought might offer a hope for America but instead merely reflected and worsened the culture. Partially in fear and despair and partially to learn I put on the mantle of a totalitarian dictator with respect to the messageboards of two web-based games - Voltec’s 1-on-1 basketball game (beginning in ‘97) and then Grand Slam Baseball (beginning in ‘98).

The psychology of a totalitarian dictator is not like it’s portrayed in various media - the primary motivation of a dictator is to save the people from themselves. Since there is a constant interplay between dictator and the people, in order to win and turn the people into sheep the dictator needs to convince them that they are better off to put themselves in the hands of the dictator. He doesn’t do so for nefarious reasons, but because he believes them to be better off if they turn themselves in.

A common misperception is that the best defense against a totalitarian dictator is a kind of paranoia about the possibility of such - and violent reaction against anything that threatens to subvert one’s will. The best way to defend against such dictators is to be a great self-manager - to always command oneself not out of fear of subversion of the will but out of love of freedom, which requires such self-management.

The problem for me was not this project of totalitarianism, but that the project succeeded. I turned people into sheep, and they handed over their will to me. This was an abyss of horror far worse than anything else I’ve experienced or conceived.

It was inevitable following this tragedy that I become a severe enemy of totalitarianism, since I am one of the very few living humans (especially young ones) who understands it and since one of the major reasons I undertook the project was that I saw the United States moving in that direction.


I didn’t have any idea I was undertaking a totalitarian project when I started - my intellectual basis for the project was the Domination/Imitation Duology, which I developed in 1997. I noticed that people would imitate the behavior of people around them, such as people in an auditorium sitting a certain way. My focus was on the psychology of domination and to understand the basis for this domination and imitation.

Perhaps the endpoint of this line is in my allegiance to and pursuit of anarchism, which is the anti-thesis of totalitarianism.

Dante was wrong. It’s self-abusive to go through hell to reach heaven. Humans should never make that sacrifice. We need to build a society such that other humans don’t think they need to take that approach.

How’s Qt3 going? The place seemed fairly mean-spirited a few months ago when I checked in.

How have you been doing? - are there any developments in your life? Are you still writing?

[Enidigm]

Oh.. but one thing. I would gather up the material evidence as to why you rejected him, in case the department needs it to sort things out.

[MikeSofaer]

I think it's unlikely that there would be much of a problem. First of all, you weren't going to pay him out of pocket, right? So his potential employer is the University, and they have lawyers.

Secondly, the way I see it, this is a case of discovering not incompetence, but malfeasance. If he has been turning a blind eye to cheaters, he is damaging the professional standing of his employer (again, the University). You might be able to ask the Faculty Senate to do a formal inquiry into his behavior and whether it warrants some kind of sanction for academic dishonesty.

I suspect he thinks you're a pushover, and will back off if you look like you're going to go to the mat.

[Hudson]

Usual I'm not a [whatever state you are in] labor lawyer disclaimer.

1) you offered to give him a recomendation (points to guilt on your part) and

Guilt of what? What's his alternative theory of why he was let go? It's a nice gesture and it's pretty much part of the compensation package for academic jobs, it's not like anyone thinks letters of recommendation mean anything.

Standard rules for at-will employees is that they can be fired for any non-illegal reason. IOW whether you thought he was doing a good job is irrelevant, he would need to prove he was fired because he was black/gay/he wouldn't have sex with you/etc.

2) You would almost have to say the position is disolved. Problem with that is you have to treat it like a lay-off and cannot re-hire someone for that position.

John was fired for non-performance if it's seen as continued employment in the same position, fire changed her mind if it's seen as two separate periods of employment.

Essentially, even if you promised you'd hire him, you didn't promise you wouldn't fire him, right? Did he promise he wouldn't quit?

I mean, I think you handled this awfully(understandable because you're new, but look at it from his perspective) and John has a legitimate beef, but not an actionable claim.

Even if you did make an employment contract that you've now breached, you are only liable for the difference between the salary he would've earned at this job and the salary he will earn at the replacement employment he gets, and his failure to seek alternative work is a violation of a legal duty to mitigate damages.

I'm as sure as someone with no training in labor law or knowledge of your state's law can be that John is just regular old fucked on this one. Tough break. Go wait tables, bro.

[Rywill]

Whoa, whoa, wait a sec. What if you're interviewing someone, and you tell him Suuuuure, you've got the job, but then none of your co-workers want to hire him? From what I understand, you can totally tell him "I'm sorry, but we cannot hire you at this time. Good luck in future interviews" and call it a day.

Maybe you can and maybe you can't, but that leaves out the part where he asks you whether you're sure and tells you he's about to make financial commitments based on your offer, and you tell him, as you put it, "Sure thing, you've got the job, 100%, no problem." And then subsequently admit (probably not just to us, but also to him) that you knew your change of mind came late and that it came after he had told you about the financial commitments he was making. And that it was based on things that a lot of people would probably feel it was your duty to check out before you told him he "100%" had the job.

Going back to your hypothetical, it might be different if you interview someone, say suuuure you've got the job, but then the person says "Are you sure? Because I'm about to sell my house and move across country to take it," and you say "Absolutely, 100%" and then after the person moves, you think "Hey I should probably check with the other people who work here," and then find out there's no funding for the new position. I'm sure you don't have to give the person the job, but I would not be at all surprised if you had to make them whole for the losses -- including reasonable lost opportunities -- they incurred.

[MattKeil]

Whoa, whoa, wait a sec. What if you're interviewing someone, and you tell him Suuuuure, you've got the job, but then none of your co-workers want to hire him? From what I understand, you can totally tell him "I'm sorry, but we cannot hire you at this time. Good luck in future interviews" and call it a day.

Technically you can, but they may have a case even then. It's worth pointing out, though, that what you did goes beyond that according to California employment law. He could have something, but I do find it highly unlikely that he would have the funds to bring it to court if he doesn't even have enough money to stay in the area over the summer.

[Hudson]

I'm sure you don't have to give the person the job, but I would not be at all surprised if you had to make them whole for the losses -- including reasonable lost opportunities -- they incurred.

36 Wis.2d 388

Deals with getting fired, but isn't that really what happened here? He was promised continued employment and his employer broke that promise.

[fire]

Different employer - similar job.

[Sarkus]

Different employer - similar job.

Depends on how it is legally defined.

[Rywill]

36 Wis.2d 388

Deals with getting fired, but isn't that really what happened here? He was promised continued employment and his employer broke that promise.

I can't believe you are making me go onto Westlaw on a Friday night.

That case is great and all, but a couple of points:

1) It's a case that is binding only in Wisconsin and is from 1967. I am no labor & employment guy, but I'm pretty sure -- maybe Dan or someone who does labor can check in here -- that California's labor laws are more liberal than those of places like Wisconsin. And that labor laws have gotten more liberal since 1967. If you're going to actually go on Westlaw and do research, I'm not sure why you pulled cases interpreting Wisconsin law, given that fire lives in California. (Unless it's just that you knew that case offhand because you practice in Wisconsin.)

2) That case is about whether or not someone bargained for permanent employment. I don't think anyone is claiming or would think that John had bargained for permanent employment. But on the other hand, I think most people would think he had bargained for a job over the summer, or at least is entitled to have his damages paid if he made financial commitments based on the promise of a job. Notice that in the Wisconsin case, the guy worked for the new company for something like seven months before they fired him. That seems a lot more like reasonable at-will employment than "hiring" someone and then "firing" them 1 second later.

3) Again, without actually doing labor stuff myself, I think there's a chance that the case falls somewhere outside of typical labor and employment concepts. Because on the one hand you've got the issue of a supposed "wrongful termination," but I agree that that seems like a loser of a case. But on the other, you've got a sort of promissory estoppel or breach of contract claim that seems to arise BEFORE John is hired, because he makes clear (and fire acknowledges) that he is about to make financial commitments based on the representation that he "100% no problem" will be working there, but then that offer is rescinded after his reliance, and for reasons that I think everyone is going to feel are unjustified (not that it's not a good reason to unhire him, but just that those checks should have been done before the assurances were made). For example, if you get hired by a place that does background checks, I think it's typical that you have to sign a document saying you understand and agree that the job can be revoked if you don't pass the check. I assume they do that because there's some potential liability on them otherwise, because they've told people they "have" the job and people rely to their detriment on that promise (by quitting their old jobs, etc.).

As others have said, though, it seems like it'll be a problem for the school, which presumably has lots of lawyers who know all about this stuff. I think it's entirely possible that the guy might ultimately have no claim under California law (or couldn't or wouldn't pursue his claim). But I'm certainly not sure of that, and I wouldn't tell fire to not worry because the whole thing will go nowhere. It's got a whiff of danger about it. I wouldn't just blow it off.

[Reldan]

I wish you the best of luck. This guy may be lazy and not very good at being a lab tutor, but honestly you single-handedly put him in a pretty shitty position that he wouldn't have been in if you had been more thorough. I know if I were in his shoes I would probably be pissed, especially if I had just signed a lease.

[Ezdaar]

Does your university have a union for the TAs, and if so does it also apply to the lab assistants? I know some of the UCs do, you might also want to check on that.

[Hudson]

That case is on isn't whether or not they had an employment contract(fact and jurisdiction specific, like "actual text of the emails" specific), but more in response to your hypothetical about selling your house.

[DennyA]

Whatever the legalities, IMHO you should have brought up the issues with him and given him a shot to improve his performance, given the verbal committment you made to him.

[Anders Hallin]

Nuke this thread from orbit and go find a lawyer, the university should have plenty. I know you probably want to solve this in a nice way, but he threatened legal action, so you better look over your arsenal in that area. Courts don't make exceptions for nice.

[Rollory]

Verbal commitments in the absence of recordings or witnesses are meaningless, and even then they're still pretty flimsy. As long as the contract is not signed, he didn't have the job and shouldn't have counted on it. A good lawyer should be able to send this guy packing, no problem.

[Ben Sones]

I'm not a lawyer, but I'm pretty sure that's not true--especially if fire is unwilling to lie in court. Verbal contracts can be legally binding, and just because they had no written agreement doesn't necessarily mean that this guy has no case.

[Damien Falgoust]

Verbal commitments in the absence of recordings or witnesses are meaningless, and even then they're still pretty flimsy.

Bullshit. I direct you to Texaco v. Pennzoil, which turned entirely on an oral agreement and represents one of the largest damage awards ever recorded. (Pennzoil had reached an oral agreement to buy Getty Oil, but before formal documents could be signed Texaco stepped in with a better offer...Pennzoil sued and won.)

If there is an oral contract here, it is most certainly provable unless fire is willing to commit perjury, in which case God help her if discovery turns up this thread.