QUIET FIRING: WHAT EMPLOYERS NEED TO KNOW BEFORE ENGAGING IN THE TRENDING FORM OF “DISCIPLINE”

“For every action there is a greater or equal reaction.”

Newton’s Third Law of Motion appears to be playing out in real time in the employment law context.  In response to the action of “quiet quitting,” where employees reduce their efforts to perform only the bare minimum at their jobs instead of actually quitting, some employers have begun to react by engaging in “quiet firing.”

“Quiet firing” is now a trending term which refers to an employer who, instead of terminating an underperforming employee, simply reduces (or eliminates) the employee’s hours and/or responsibilities until the employee voluntarily quits.  Because this maneuver relies on the employee’s dependance on hourly wages, it typically only comes into play for hourly, non-salaried employees who would feel the immediate effects of a reduction in hours.  In theory, the employee will quickly realize that they cannot afford to continue their employment in the reduced capacity and will either find alternate work elsewhere or conform to the employer’s expectations.

There are several reasons why an employer might “quiet fire” a problematic employee instead of terminating them.  First, the manager or supervisor wishing to terminate the employee may want to avoid a confrontation.  Second, the manager or supervisor may prefer this method to allow them not to feel negatively about the termination because the onus is now on the employee to end the employment relationship.  Finally, some employers may see this as an opportunity to avoid unemployment compensation claims because employees who resign normally do not qualify for benefits.

Despite what may appear to be beneficial to employers who “quiet fire” employees, employers should resist the urge to utilize this tactic as the potential consequences outweigh any perceived benefits.  For example, reducing an employee’s hours very well could be considered an adverse employment action should the employee file a complaint of discrimination or retaliation.  Moreover, even if the hours reduction is determined not to be an adverse employment action in and of itself, it could form the basis of a constructive discharge claim, particularly if the employee’s scheduled hours are eliminated completely.  At the very least, a reduction of hours may be used to demonstrate disparate treatment between employees and serve as anecdotal evidence to prove discrimination.

What should employers do?  Although it may sound tempting, employers should not react to the quiet quitting trend by resorting to quiet firing problematic employees.  Instead, employers should continue to use traditional methods to address problematic behavior including coaching and progressive discipline.  Should those efforts prove unsuccessful, managers and supervisors need to be ready to have the difficult conversation necessary to terminate the employee.  Not only will this protect the employer’s reputation as a good workplace and provide goodwill for the business, but it will also lead to a happier, more stress-free workplace because employees will not have to fear that they may be quiet fired without warning or the opportunity to improve their performance.  Finally, it will save time and money in the long run should a terminated employee file a charge claiming discrimination or retaliation.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutTimothy Bubenik
Tim represents management in all areas of labor and employment law.