I recently had to fire two of my contractors this week. One had been with me the longest (about 2 yrs). It's a long story, but the short of it is: while they were both good staff, excellent at their jobs, they had a problem following directions. They were both given many warnings and second chances, but didn't really improve in this area. So, I fired them.
It's never plesant. Always upsetting to me as an owner. Not to mention all the cleanup and changeovers, the IT stuff, like changing passwords, and deleting email addresses, the severance contracts. Firing a person is never easy work.
One of the staff became disgruntled. Despite the fact that her contract had an (admittedly weak) indemnification clause in it, she still did something unethical. She contacted all our current clients, and slandered me, telling them that I had mistreated her and the other contractor I fired. AND, encouraging them to all ask for refunds (even the ones for whom the contract was fulfilled)
The indemnification clause simply states
'In the event of a termination, you agree to indemnify [the LLC] and abstain from pursuing any legal action against the LLC on the basis of termination.'
Don't think this is strong enough for a breach of contract case?
My wife suggested I call a lawyer. 'She has to be stopped!' she exclaimed. 'If clients start calling the BBB or writing negative reviews, our business could be sunk!'
One of the clients actually did request a refund, saying that he 'didn't know whom to believe, but he wanted his money back.' So the damage has already begun. I emailed this email to my lawyer as well.
Of course, I realize this. So, I called my lawyer. He asked me to fax over the IC agreement, as well as the email the former contractor sent out to all my clients. I'm still waiting for my lawyers response.
My wife says she thinks the lawyer is going to try to treat this as a breach of contract issue. She thinks it really ought to be a libel or defamation of character issue. I don't know the law on this.
Hi Eric - is it gone too far to meet up with this disgruntled ex-employee and attempt to reach an amicable solution - perhaps you will agree to provide references for her/him for future prospective employment in return for calling a truce - given the damage this person could do to your business it would seem making a good will gesture (even though its probably the last thing you feel like doing) may give the best chance of a less costly and the quickest way to resolve. It may not be in your interests to take a legal route - I have witnessed these processes and (personally) would avoid at all costs - lengthy and damaging for both parties in my experience
Hi Eric - is it gone too far to meet up with this disgruntled ex-employee and attempt to reach an amicable solution - perhaps you will agree to provide references for her/him for future prospective employment in return for calling a truce - given the damage this person could do to your business it would seem making a good will gesture (even though its probably the last thing you feel like doing) may give the best chance of a less costly and the quickest way to resolve. It may not be in your interests to take a legal route - I have witnessed these processes and (personally) would avoid at all costs - lengthy and damaging for both parties in my experience
Thanks for the reply, Sarah Charlotte,
To answer your questions:
'is it gone too far to meet up with this disgruntled ex-employee and attempt to reach an amicable solution'
I don't reach amicable solutions with vindictive, malicious people
'perhaps you will agree to provide references for her/him for future prospective employment in return for calling a truce'
-Remember, this is a contractor, not an employee. She wasn't a FT employee, nor was my firm her only job.Furthermore, laws, rules and regulations governing their conduct is different than for an employee. But, no. No references will be provided.I believe the former contractor is clearly in the wrong, and I''m in a position of power.
What you're asking me to do, is very Taoist, very Christian. Humble myself, turn the other cheek, try to work out a resolution.
Although I am Christian, I do not feel inclination or obligation to act like one at this moment.
But your comments strike a chord deep within. I gave this person everything, I feel. Bent over backwards. Gave raises, bonuses, at many points called her my 'star player' - and she was to a large extent. I put a lot of time, faith, energy, effort into training her. I was more than patient with her, more than forgiving. I believe.
What you're asking me to do is, try to come up with a truce. But this is a vindictive person. What makes you think she will agree to a truce, and even if she did agree, that she'd keep her word? In my experience, people who act on malicious intent are not reasonable. Your statement, however, implies that this is a reasonable person I'm dealing with. Not sure she is.
In fact, she once told all of us, during a staff meeting, that she's is the type who, when wronged, likes to get even, not forgive. Aside from the obvious fact that any staff member who has half a brain wouldn't say things like that to a boss and co-workers, it is very telling.
Thanks for the reply, Sarah Charlotte,
To answer your questions:
'is it gone too far to meet up with this disgruntled ex-employee and attempt to reach an amicable solution'
I don't reach amicable solutions with vindictive, malicious people
'perhaps you will agree to provide references for her/him for future prospective employment in return for calling a truce'
-Remember, this is a contractor, not an employee. She wasn't a FT employee, nor was my firm her only job.Furthermore, laws, rules and regulations governing their conduct is different than for an employee. But, no. No references will be provided.I believe the former contractor is clearly in the wrong, and I''m in a position of power.
What you're asking me to do, is very Taoist, very Christian. Humble myself, turn the other cheek, try to work out a resolution.
Although I am Christian, I do not feel inclination or obligation to act like one at this moment.
But your comments strike a chord deep within. I gave this person everything, I feel. Bent over backwards. Gave raises, bonuses, at many points called her my 'star player' - and she was to a large extent. I put a lot of time, faith, energy, effort into training her. I was more than patient with her, more than forgiving. I believe.
What you're asking me to do is, try to come up with a truce. But this is a vindictive person. What makes you think she will agree to a truce, and even if she did agree, that she'd keep her word? In my experience, people who act on malicious intent are not reasonable. Your statement, however, implies that this is a reasonable person I'm dealing with. Not sure she is.
In fact, she once told all of us, during a staff meeting, that she's is the type who, when wronged, likes to get even, not forgive. Aside from the obvious fact that any staff member who has half a brain wouldn't say things like that to a boss and co-workers, it is very telling.
It is so hard to fire emplolyee's even when they deserve it. This employee has done a lot of damage to your business and the only way you can deal with it is through legal lines now. Maybe in time you could mend bridges, but right now the wounds are too raw. Did your lawyer get back to you on how your clause was? Wording is so important.
It is so hard to fire emplolyee's even when they deserve it. This employee has done a lot of damage to your business and the only way you can deal with it is through legal lines now. Maybe in time you could mend bridges, but right now the wounds are too raw. Did your lawyer get back to you on how your clause was? Wording is so important.
I think you have grounds to file a defamation claim.
Ofcourse you have to prove the following
1. a publication to one other than the person defamed;2. a false statement of fact;3. that is understood as : a. being of and concerning the plaintiff; and b. tending to harm the reputation of plaintiff.4. If the plaintiff is a public figure, he or she must also prove actual malice.
In my whole life I have only fired 4 employee but you are right it is never pretty and usually they tend to be bitter.
Take this as an opportunity to help prevent similar cases from happening again.
(Edited : My apologies about the link. I edited the content so that they wont have to browse away. Thank you) ---This post was edited to remove a external link. Read our discussion policies for more Community best practices.
Well, my law firm is sending a letter to the ex-contractor stating that the firm is now involved and her conduct could be grounds for a tort cause of action, if she continues this behavior.
Recent events where a previously employed contractor created some major problems for our firm led me to post this.
Do you have these 3 clauses in your contractor or employee hiring contracts? I've learned my lesson; the non-disparagement, non-solicitation and non-compete clauses will definitely be in all future contracts I negotiate with potential new hires.
Here are some sample language for each:
Non-Disparagement Clause
The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Defendant, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients.
The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.
NON-SOLICITATION/NON-COMPETE CLAUSES
The Contractor acknowledges and agrees that the nature of the Gnosis Arts Multimedia Communications LLC confidential, proprietary, and trade secret information to which the Contractor has, and will continue to have, access to derives value from the fact that it is not generally known and used by others in the highly competitive, industry in which Gnosis Arts Multimedia Communications LLC competes. The Contractor further acknowledges and agrees that, even in complete good faith, it would be impossible for the Contractor to work in a similar capacity for a competitor of Gnosis Arts Multimedia Communications LLC without drawing upon and utilizing information gained during employment with Gnosis Arts Multimedia Communications LLC. Accordingly, at all times during the Contractors employment with Gnosis Arts Multimedia Communications LLC and for a period of one year after termination, for any reason, of such employment, the Contractor will not, directly or indirectly:
(a) Engage in any business or enterprise (whether as owner, partner, officer, director, Contractor, consultant, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a company) that directly or indirectly competes with Gnosis Arts Multimedia Communications LLCs business or the business of any of its subsidiaries anywhere in the United States, Canada or Europe, including but not limited to any business or enterprise that develops, manufacturers, markets, or sells any product or service that competes with any product or service developed, manufactured, marketed or sold, or planned to be developed, manufactured, marketed or sold, by Gnosis Arts Multimedia Communications LLC or any of its subsidiaries while the Contractor was employed by Gnosis Arts Multimedia Communications LLC or any of its subsidiaries; or
(b) either alone or in association with others (i) solicit, or facilitate any organization with which the Contractor is associated in soliciting, any Contractor of Gnosis Arts Multimedia Communications LLC or any of its subsidiaries to leave the employ of Gnosis Arts Multimedia Communications LLC or any of its subsidiaries; (ii) solicit for employment, hire or engage as an independent contractor, or facilitate any organization with which the Contractor is associated in soliciting for employment, hire or engagement as an independent contractor, any person who was employed with Gnosis Arts Multimedia Communications LLC or any of its subsidiaries at any time during the term of the Contractors employment with Gnosis Arts Multimedia Communications LLC or any of its subsidiaries (provided, that this clause (ii) shall not apply to any individual whose employment with Gnosis Arts Multimedia Communications LLC or any of its subsidiaries has been terminated for a period of one year or longer); or (iii) solicit business from or perform services for any customer, supplier, licensee or business relation of Gnosis Arts Multimedia Communications LLC or any of its subsidiaries, induce or attempt to induce, any such entity to cease doing business with Gnosis Arts Multimedia Communications LLC or any of its subsidiaries, or in any way interfere with the relationship between any such entity and Gnosis Arts Multimedia Communications LLC or any of its subsidiaries.
Of course, the language would need to be tweaked to fit your specific situation, but you get the idea. These types of clauses will help protect your firm against vindictive acts of terminated staff that threaten or obstruct business operations; employees stealing or trading trade secrets; contractors using your business model and practices, after leaving your employ, and setting up shop to compete directly against you; contractors soliciting business from your customers after being fired, contractors working for customers after or during employment (within a reasonable time frame after leaving your organization); etc. These clauses can help protect your business against a variety of potentially threatening or damaging scenarios.
Do you utilize any of these clauses in your contracts?
You might consider asking your attorney to obtain an injunction against this person. This way, if you learn of further bad-mouthing that hurts your business, she can be fined or possibly (check with your attorney) jailed. Additionally, once the injunction has been filed, this fact can be made public.
If you have a social media policy, you may also want to see if this has been violated. Appropriate language can thenbe added to the injunction. (If you don't have such a policy, you may want to create one). You'll also want to create Google alerts for your own name and the name of your company to see if anything is posted on the web.
Please do inform us on the progress of this case, as this can happen to anyone.
I do hope that you win. Employer also need to have some protection against disgrunted employee.
sarahcharlotte | Performer | 8/6/2010 - 12:11 pm
petrosianii | Window Shopper | 8/6/2010 - 12:11 pm
seldenco | Performer | 8/6/2010 - 5:56 pm
gretcyshaw | Creator | 8/12/2010 - 8:22 pm
petrosianii | Window Shopper | 8/18/2010 - 4:17 pm
RMiller | Creator | 8/18/2010 - 4:23 pm
petrosianii | Window Shopper | 8/25/2010 - 4:04 pm
askhrpros | Performer | 8/11/2010 - 6:41 pm
seldenco | Performer | 8/12/2010 - 4:04 pm
gretcyshaw | Creator | 8/12/2010 - 11:32 pm
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