should we put off firing an employee for several months so he doesn’t violate probation?

by Alison Green on May 4, 2023

A reader writes:

I work at a small, fully remote start up, and I am HR — but wasn’t hired for that, and am learning HR as I go. I generally take care of day-to-day HR responsibilities but am not responsible for higher level personnel decisions.

A manager high in the company, Tiffany, has been having ongoing problems with an employee’s performance. The employee, Pete, was moved to a new role a few months ago that she thought might be a better fit for him, and the problems have continued. Tiffany showed me extensive documentation of written communication they’ve had about his work and how frequently she’s been correcting him, asking him to do things differently, and then having to check in and ask why it wasn’t done the way she asked. She’s made it clear to me that Pete cares a lot about his work and is trying very hard, but is continually causing a lot more work for her as she goes behind him to fix things and has to meet with him much more frequently than any of her other employees. He just wrapped up a big project where deadlines weren’t met because of his performance, and she is ready to let him go.

The catch here is that Pete has committed a crime in the past and is on probation for several more months — probation that is dependent on him remaining employed. Tiffany, along with our CEO, want to be as kind as possible to Pete and not do anything to endanger his probation when it is so close to ending, but Tiffany said she truly does not want him working on anything else because of how much more work it creates for her. I suggested giving him a month’s notice that we would be letting him go and encouraging him to transition over his work to other team members and otherwise he could use work time to job search, but they were concerned that that wouldn’t be enough time to find employment, which I can agree with. I suggested that if they want to wait until his probation ends, they could put him on a PIP that ends then, or just wait until then to let him know that we’re letting him go. Tiffany was absolute that she did not have any projects she wanted him working on, and her ideal scenario would be to keep Pete employed but not actually let him do any work for nearly four months.

And, well, that’s what she and the CEO decided to do, basically. They gave him a termination notice letting him know that his employment would be ended the same day his probation ends, unless he decided to quit sooner, which is a date nearly four months away. Tiffany doesn’t have anything at all that she wants to let Pete work on in that time, aside from whatever is needed to transition his work to other people, and encouraged him to use work hours to job search.

What do you think of this? On the one hand, I appreciate knowing that my company does not let people go callously, and that our CEO cares so much about being compassionate to employees — no one should treat someone’s livelihood lightly. That said, this seems so extreme, and not something that would be doable for every employee (anyone would like four months notice of being fired, right?). How would you have recommended we handle it?

Well … it depends a lot on context.

In general, employers wield so much power in the employment relationship that they should default toward compassion when they can. If someone risks going to prison if you end their employment now rather than a few months from now (which is presumably what violating a condition of his probation could mean), I’d like to try to extend it if we can.

But whether that’s reasonable depends on a lot of factors. One of the biggest is what you’ve done for other people when firing them and what you’re willing to do in the future. If others with a similar level of performance problems as Pete have been let go immediately, and Pete happens to be demographically different from that group in some way (race, religion, age, sex, etc.), you risk it opening you up to legal issues down the road even if your intent wasn’t to be discriminatory. (That’s not to say you can never make an exception for someone in a situation like this. You can! You’re allowed to exercise independent judgment in this stuff. But you’ve also got to consider what risks it could create for you as a company. “Risks” doesn’t equal “you definitely would lose a lawsuit over this” — a nuance that some HR departments seem to lose sight of — but you do need to be sure you’re taking it into account.)

I’d also care about how Pete has conducted himself through all this. If he’s been trying hard and working in good faith, it’s understandable to be more motivated to try to help him than if he hasn’t been.

Other context can matter too. For example, if Pete has been struggling in part because he signed on to do one type of work but the role ended up requiring him to do another, Tiffany might (and should) feel an especially high degree of obligation to make sure she doesn’t blow up his life over it. The same goes if she recruited him aggressively from a job he was thriving in or talked him into moving across the country to work for her, or if he has worked for the company for 20 years, or a number of other things that could make her feel extra obligated to ensure a softer landing for him now.

Plus, there’s the organization/team’s broader financial context — some orgs couldn’t afford to pay someone to do nothing for several months, even if they wanted to. Others could do it easily (and do that regularly if you look at some of their employees’ productivity…).

And there’s the question of how Pete ended up on probation too! Some people get a raw deal from the justice system and it’s a kindness not to make it rawer if you have that ability. And other cases … are not that.

All of which is to say, there’s no one right answer here because it depends on so many specifics.

As HR, your role is definitely to point out the need to be careful legally. But beyond that, there’s nothing wrong with defaulting toward compassion. Not endless compassion — you can’t let someone continue performing at a low level long-term — but a short, time-limited exercise in compassion under fairly extreme circumstances? I appreciate your company’s desire to do it.

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{ 228 comments }

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  1. Eldritch Office Worker*

    “And there’s the question of how Pete ended up on probation too! Some people get a raw deal from the justice system and it’s a kindness not to make it rawer if you have that ability. And other cases … are not that.”

    I’d just be careful with this if you’re in a ban the box state. Felonies aren’t protected (at least in MA) and that’s probably the category being alluded to, but I’d just advise being very careful.

    1. Twix*

      I don’t think that was an allusion to all felonies, but rather to the specifics of any given conviction. Some people are convicted of felonies for very sympathetic reasons, and some people are convicted of misdemeanors for truly horrible actions.

      But also, the “ban the box” movement is about fairness in hiring practices. The goal is to prevent companies from using a felony conviction as an automatic disqualification before even talking to an applicant. I’m not familiar with the specifics of every state’s laws, but they generally don’t prevent companies from considering someone’s criminal record later in the hiring process (nor should they), much less in how much grace to give an existing employee.

    2. doreen*

      I don’t think Alison was referring to misdemeanors vs felonies but rather the fact that not all convictions involve a “raw deal”.

      As far as “ban the box” laws, I don’t think any general statements can be made – in NYC ( which has its own version) employers can’t consider criminal history before making a conditional offer of employment and can only withdraw the offer if there is a direct relationship between the conviction and the job or that employing the applicant would pose and unreasonable risk to people or property. And it protects current employees who have been arrested. I’m fairly certain that most “ban the box” laws don’t go that far.

    3. meggus*

      A lot of people get a raw deal from the justice system because the $$$$ justice gap is *enormous* and very real and our justice system is heavily biased towards minorities and POC, especially Black Americans, who face extremely high rates of wrongful convictions. There are still many, many people serving felonies for low level drug crimes while cannabis is increasingly being legalized at the state level. This is an extremely complex set of circumstances where institutionalized racism is heavily at play, and it’s past time for everyone to be very conscious of it. TLDR: our justice and prison system is highly problematic and extremely racist, please keep this in mind re: people with felony convictions.

  2. Defense Attorney*

    Criminal defense attorney here…

    I cannot speak for every jurisdiction. I can only give you examples of how this situation would work where I practice and in this area.

    It depends on how his sentencing order was written. Our judges would write the order to say “make all efforts to obtain and maintain gainful employment.” That kind of phrasing would mean he would not have his probation violated for being fired, so long as he kept looking for work.

    I would suggest speaking to his PO, if Pete was OK with that. Find out the exact conditions and what would constitute a violation. Then work with the PO to balance the needs of the company with Pete’s need not to be locked up.

    1. A Shrimp*

      If “make all efforts to obtain and maintain gainful employment” applies here, would it help if the company says something like “we didn’t fire him because he sucks at being employed in general, he’s just not right for this role”? Like, if they make it clear he’s not unemployable and was really trying?

      1. Defense Attorney*

        Again, I can’t speak for this specific circumstance. I can say that the POs here do not violate people for being unemployed, so long as they are trying to gain employment. (I’ve seen violation reports that said “So-and-so was working at XYZ until SomeDate, then were let go.” The violation was not for being let go from their job, but clearly the PO knew about it.)

    2. Venus*

      I’m not a lawyer but I have a feeling that it would likely be more about looking for work. It would be unreasonable for someone to need to be continuously employed if they happened to work somewhere that had mass layoffs. There might even be wording about needing to find some type of work within X weeks, or needing to be employed X months out of 12, but never being unemployed for even a day seems like a harsh expectation.

      Then again I could be wrong. A lot of the world is unreasonable and illogical!

      1. Defense Attorney On TV*

        I am a lawyer (not a criminal lawyer, but criminal law issues come up frequently in my practice). The wording in Defense Attorney’s comment – something along the lines of, make reasonable efforts to obtain/maintain employment – is exactly what I would expect. Jurisdictions differ, of course, but I’ve practiced in 5 states and in federal courts (trailing spouse!) and I’d be floored if the law was that someone had to go to jail because of layoffs. (Of course, sadly, laws get applied differently to different groups of people, so just trying to show that you are TRYING can be difficult to establish for some groups, when you don’t get the benefit of the doubt.)

    3. I'm Just Here For The Cats!*

      Thanks for a defense lawyer’s perspective! I thought that it would be so odd and overly strict that someone could risk going to prison because they lost their job. There are so many scenarios where someone loses their job and they didn’t do anything to cause it. The company closes, or moves to another state; they do a reorganization and eliminate positions. Or in this case, the employee is just not the right match. It doesn’t sound like he is doing anything wrong, like being confrontational, missing days, etc. Just that his skill set is not whats needed.

      I think the company is doing the right thing.

      1. Rose*

        Keep in mind too in the eyes of the justice system parole is a privilege not a right. It’s not something you get just because you have “been good.” It also depends on external factors like family support. Most people I’ve interacted w in the system don’t have the attitude of “this needs to be fair and given to whoever earns it.”

        My father just lost his parole essentially because he’s mentally ill and the state didn’t feel confident they could keep him safe and housed.

        1. NeutralJanet*

          Pete isn’t on parole, though, he’s on probation. When you’re on parole, you’re let out of prison before your sentence ends because you promise that you’ll “be good” (fun fact, that’s actually where the word parole comes from, it’s the French for word as in “you gave your word”), but it can be revoked for pretty much any reason. With probation, that IS the sentence, and you’re often not incarcerated at all, so there’s generally a higher bar for sending someone to jail or prison for violating probation.

      2. Sloanicota*

        I mean, I think we deport people whose visas depend on staying employed. I know we kick people off critical health insurance programs even if they really, really need them. I would not be stunned to hear we also send people back to jail, TBH.

      3. Cj*

        If they truly would violate probation if they are unemployed for even a short time, then I agree that the company is doing the right and compassionate thing. But if defense attorney is correct, and they wouldn’t end up in prison if they get fired, I don’t see why they should be treated differently than any other employee.

    4. elle *sparkle emoji**

      Thanks for explaining, I was curious about this. It seems unreasonable to require constant employment when that’s not entirely up to a parolee but I’ve definitely heard enough news stories of unreasonable actions by the criminal justice system that I wasn’t sure.

      1. NeedRain47*

        From what I’ve read, probation is in fact often used in punitive and unreasonable ways that basically set people up to fail. For instance, studies show that it’s useful for a limited period of time (months) but people are often on probation for years and years and it’s just making them jump through many hoops for no reason.

        1. Ally McBeal*

          And the financial penalties make it even worse. How are you supposed to pay for the privilege of probation if what you were charged with means it’ll be hard if not impossible to find gainful employment. One of my siblings caught a couple DUI charges (despite never actually having driven down any public road while intoxicated, but that’s neither here nor there) and the only jobs they could get for a long time were restaurant jobs, so they had to really scramble to make their monthly probation payments or risk going to prison.

          1. Kim*

            what? You have to PAY for probation? How is this not something covered by the state?

            1. Velawciraptor*

              Court comes with all sorts of expenses. There are fines. Probation fees. Court costs. DNA fees. Victim reparation fund fees. Bench warrant fees. They squeeze people dry, most of whom weren’t doing well financially even before they were charged. It’s astonishing, and one of the many aggravating parts of being a public defender.

              Some courts will waive certain fines/fees. Many things are tied to an ability to pay. Some things can be “worked off” with community service. In some situations, people “sit out” what they owe the courts by doing time in jail at a set rate of $X/day so that Y days wipes out what you owe the court.

              1. Cannibal Queen*

                This might be apocryphal, but I’ve heard stories about people in the US being sent hefty bills after being released from prison – for the cost of their ‘board and lodging’ while in prison! Just nuts.

                1. Pescadero*

                  A friend of mine spent 75 days in County Jail about 25 years ago.

                  He received a bill for ~$35 per night for his 75 day stay.

              2. Emmy Noether*

                That last thing is just so aggravatingly illogical. Can’t pay money to the state? Instead, you can go to prison and cost the state money, that’ll be equivalent! Not to mention that it will impact the person’s ability to earn money to pay the next fee…

                At least the community service has some logic.

              3. steliafidelis*

                When I was working as a teller there was a fellow on work-release who had to come to our branch and get a cashier’s check payable to the county correctional authority for basically the whole amount of his paycheck every week. He got to keep maybe $20. I don’t know why or what the terms were or if that was typical for work-release, but it was awfully unfair and demoralizing.

            2. riverofmolecules*

              Prison industrial complex.

              States contract with private companies to do things like monitor people on parole (e.g., operate ankle monitors) and the companies’ fees get charged to the people on parole.

            4. MM*

              Some prisons make families pay to call their incarcerated loved ones. Absurd rates.

            5. Ask a Manager* Post author

              Similarly outrageous: If your children are taken away from you and put in foster care, the state can charge you every month they’re in foster care, even if the reason they were taken from you was poverty-related (which it often is). This often extends the amount of time children are separated from their families and keeps their families in debt for years after they’re returned.

              More here:
              https://www.npr.org/2021/12/27/1049811327/states-send-kids-to-foster-care-and-their-parents-the-bill-often-one-too-big-to-

              1. Cj*

                it’s like throwing people in jail if they don’t pay their child support. how in the world are they supposed to pay it if they can’t work? I realize there are work release programs that let you leave the jail to go to your job, but a lot of places probably won’t hire those people.

            6. Festively Dressed Earl*

              That’s how our legislature got around automatically reinstating voting rights for felons, despite 65% of Florida’s citizens voting to do so. They passed a law stating that all fees and fines had to be paid in full before voting rights could be restored. So far, the 11th district has held this to be constitutional.

              1. Ariaflame*

                As I remember they then made it almost impossible to find out how much that actually was. Also poll tax

                1. Festively Dressed Earl*

                  Yes they did, and yes on the poll tax argument. The statute was initially found unconstitutional and then overturned on appeal.

            7. DadBods_are_FatherFigures*

              In my state you do. My brother was on probation briefly for a domestic violence charge (she slapped him, he reflexively slapped her back but … he’s the man soooo) until he finished anger management, at which time it was expunged. But during the time he paid I believe something like $88 a week for his probation. (maybe per month, but I believe it was per week…it was like 15 years ago so my memory is hazy).

        2. Fitness*

          My husband is a defense attorney in Texas, and people definitely get 10 years probation over a few years in jail b/c they can be under supervision longer. Basically, if you get a two year sentence, serve it, and get released, you are done, but the officials know probation is hard to maintain for a long amount of time, and you’ll probably violate before 10 years is up. This happens a lot.

      2. Michelle Smith*

        I am also a lawyer I want to make sure people reading this are VERY clear, people can and do get violated for a whole lot less.

        1. Defense Attorney*

          Which is why I made it clear I could only speak specifically for the jurisdictions in this area.

          1. AnonForThis*

            Yes, in my experience there’s pretty much no way someone in a big city would get violated for this. But rural area? All bets are off.

        2. Blackcat*

          YUP. My cousin got violated for being in my aunts car when she was pulled over for an out tail light. She had no idea it was out, but because he was with her when she “committed an offense” he went back to prison.

    5. doreen*

      I worked in my state’s parole agency for nearly 30 years – and no one ever got sent to prison because they lost a job. Or because they quit a job . Or because they neither had a job nor were looking for work but were doing something else productive with their time like a treatment program or school or caring for children while their partner worked. It’s hard to imagine that probation would be different.

      1. Mid*

        Unfortunately, it is. I’ve met and worked with people who got parole violations for not being employed, and some were because it was also required to get employment through an approved agency, and the agency didn’t have any work for them. They couldn’t get a non-approved job, and there weren’t any approved jobs, so they went back to prison. (This policy has since been changed, apparently, though it’s still unnecessarily punitive to people and has a very high “recidivism” rate due to all the pitfalls they set up, and the lack of staff to support people properly.)

        Many parole programs also prohibit associating with other felons, and some consider employment with other released felons to be a violation of that. Which, given the number of employers that refuse to hire felons, is an unnecessarily burdensome requirement. Plenty of people released on parole have to follow “special conditions” which are beyond the state parole requirements, and there is very little oversight of those conditions or how they’re implemented.

        While not every parole office is like this, plenty of them are very much set up to be burdensome and punitive, and will absolutely take any opportunity to send someone back to incarceration. I’ll post some links in a reply, for anyone who would like to read more.

        I say all of this not to say that Doreen’s experience is untrue—in fact I very much hope it is! But there is a lot of variance across parole programs it is absolutely possible that someone would be sent back to prison for being unemployed.

        1. Mid*

          https://www.washingtonpost.com/magazine/2021/05/24/moral-outrage-american-parole/

          https://www.hrw.org/report/2020/07/31/revoked/how-probation-and-parole-feed-mass-incarceration-united-states

          https://www.prisonpolicy.org/reports/grading_parole.html

          https://journals.sagepub.com/doi/abs/10.1177/07340168211020811?journalCode=cjra

          https://www.uscourts.gov/sites/default/files/71_1_3_0.pdf

          https://www.ojp.gov/pdffiles1/nij/grants/224521.pdf

          https://www.safeandjustmi.org/wp-content/uploads/2013/02/Parole_conditions_make_it_hard_to_succeed.pdf

        2. Cake or Death*

          But this is probation, not parole. They are different and have different conditions/rules.

          1. Mid*

            People often use them interchangeably, and parole can and does have similar conditions to probation, depending on where you live.

      2. JSPA*

        I had a friend whose parole officer would opened and sniff every one of her (sealed) bottles of water and juice in hopes of finding alcohol. 10 years of that (for a misdemeanor), and then they tried to claim that she was an ongoing risk because she was “paranoid” and depressed.

        She has a slightly slurring speech impediment due to a childhood car accident. From the judge who wrote the orders on down, they were always sure that she must be slurring drunk.

        Having been hit by a drunk driver, she never drank.

        It’s not a system with a lot of checks and balances; “hey, jail / prison is always an option” shuts down even very legitimate objections.

    6. AnonForThis*

      This is incredibly jurisdiction specific but adding to the chorus that I’ve never heard of someone having their probation revoked because they lost their job. The vast majority of the time it’s because of a new arrest. We even once had this guy who just wouldn’t go to his anger management classes and he got about five chances (he eventually went).

      1. squeakrad*

        I am guessing if it is that strict, it might have to do with the nature of the crime Pete is on probation for.

        1. Corrections*

          I can’t think of a crime type that would result in a stricter employment condition, though.

          1. squeakrad*

            I was thinking if the job involves not supporting yourself, like stealing or being an addict or maybe embezzling that they would make employment a requirement to show that you were supporting yourself?

        2. Velawciraptor*

          Often as not, it’s about which PO the probationer wound up with and the judge they’re in front of in terms of how strict terms are and what will and won’t be treated as a violation. At least in the jurisdictions where I’ve worked.

    7. Sal*

      Former crim defense lawyer here and there were some real jerk POs who would absolutely violate someone (or try) for this. I appreciate the company looking out for Pete here.

      1. Michelle Smith*

        Exactly. I feel like people are getting the wrong impression here. It does happen. And even if the person ends up winning their hearing, that doesn’t mean they weren’t put back in jail while that hearing date was pending. I’ve seen people spend weeks waiting for their day in court to resolve the alleged violation.

      2. DadBods_are_FatherFigures*

        Not a lawyer, but I play one on TV. I agree. Look if I were a fellow employee and hew as jerking around all day for 4 months, I might be annoyed, but if he genuinely has been trying and is now actively transitioning his work and not gloating or playing candy crush … I’d be happy they’re helping him out, and maybe they can find some “non-project relevant” things for him to do. Organize the storage room. Make copies. Act as a courier. Something to FEEL contributory. But bottom line is: None of us KNOW exactly what his probation condition was, whether it was “make reasonable attempts to maintain employment” or “remain employed for the duration of probation” or whatever other myriad ways it may have been written. But I think this compassion is awesome.

    8. Corrections*

      Yes, I’m not a lawyer but do work for a correctional agency and it would be unlikely for someone to have their probation revoked for being fired from one job, as long as they could show their PO they are looking for another job. It’s sorta like the media depiction of unemployment, where you have to show you’re applying for jobs or doing some job-searching activities.

      1. MC*

        Except that is exactly how unemployment works in some places. The state I live in absolutely requires that you show that you are actively searching for a job to continue receiving benefits.

      2. DadBods_are_FatherFigures*

        Yeah that’s only a “media description” because….that is 100% how it works.

    9. TurnedMeIntoANewt*

      I was thinking along the same lines (former prosecutor, here). In at least some jurisdictions, there’s also a hearing between a PO marking someone as having violated probation and going to jail. Depending on the situation, they might be held in custody but usually if there’s a specific reason like they disappeared or something involving violence. Like many government workers, most POs have a gigantic caseload so they are also prioritizing big problems.

    10. anon for this*

      Former federal prosecutor. A person on federal supervision, in both districts where I’ve worked, wouldn’t get violated for losing their job, unless they lost it for some reason that was itself a violation of another condition (like using illegal narcotics or absconding, like actually leaving the jurisdiction). The condition is to maintain *or seek* employment, assuming no health problems or family obligations that prevent them from doing so. The real problem is someone who refuses even to look for a job, but even so, that’s not going to get someone violated in the absence of breaking any other rules. Admittedly, losing jobs can correlate with other violations, but on its own, it’s not going to sink someone.

      That said, I absolutely understand that not all jurisdictions are like this, so it is very fact-specific. One of the benefits of working in the federal system has been that in contrast with many local authorities, the feds actually have the resources to provide people on supervision with a lot of support, and treat it as rehab rather than punishment (for instance, they don’t send people back to prison for not paying fines). And even so, I’m sure the supervisees still feel that it’s punitive sometimes.

      1. DadBods_are_FatherFigures*

        “And even so, I’m sure the supervisees still feel that it’s punitive sometimes.”

        I mean if they committed a crime of some sort that got them put on probation, I think it SHOULD feel at least a LITTLE punitive, otherwise, there’s very little incentive to say, “I do NOT want to do THIS ever again.”

  3. Jake*

    Let’s home your startup is 100% bootstrapped because if any investor finds out how the CEO is spending money while knowing there’s no result, there’s gonna be hell to pay

    1. Southern Soul*

      I mean, maybe, but investors are people too and it’s possible that person would agree with the approach they’ve taken. This seems like one of the risks the CEO and Pete’s boss have probably already taken into account when making the decision they did.

      1. Richard Hershberger*

        “investors are people too”

        Objection. Assuming facts not in evidence.

        2. I'm Just Here For The Cats!*

          I can’t tell if this is sarcasm or if you are being a bit of a jerk.

            1. JSPA*

              And you’ve also got the kernel of a good point! Even though investors are people….Unless the corporation is a B-corporation, in theory they are supposed to be looking out for the financial interests of an idealized investor. Not the personal preferences of any one (or any few) investors with a heart.

              That said, “One low level person was once kept for a few months beyond their clear use to the organization” is nowhere near the crisis Jake’s making it out to be, and companies keep non-working workers around for much worse reasons.

              Nepotism… hoarding talent… reorganizations that leave people with nobody to report to, nor any work to do… fulfilling, in name only, a requirement that they have someone with a particular certification on board… not noticing that a worker is spending the entire day, every day, playing candy crush… Hiring in-office computer people without having computers in the office yet (or internet, or wiring)… Having cars, a couple-dozen employees and a glitzy showroom for months (years?) before you actually have the right to direct-sell cars in the state…

              And then add for context how equipment and process mistakes can burn through multiple millions (whether that’s trains that don’t fit tracks or platforms, or a hospital system getting its computers wipe to buy a virus)…

              Anyone who believes that most businesses always use their money efficiently (at the level of a few thousand dollars) is frankly mistaken.

              Anyway if you need a financial justification, not having an ex employee in the news for recidivism is a solid financial choice. Having an ex employee who speaks highly of you instead of dragging your name–also a good choice.

              ” It was a bad fit but they really stood by me and I respect them” is the sort of messaging that money (usually) can’t buy (except that here it actually can).

          2. Boolie*

            Not entirely germane to this letter, but seeing myself over the years how often a company would rather lay off a strong employee who are due to take temporary leave over a weaker employee who is not, I’m inclined to think quarterly earnings are the priority over people.

          3. Hiring Mgr*

            Being that it’s a startup, there’s a good chance the investors are Venture Capitalists, who are not known as a group for their humanity.

            Painting with a broad brush of course, but that’s the stereotype

      2. e271828*

        Super impressed that you took meaning from that comment instead of reading it as buzzword spam, as I did!

    2. Richard Hershberger*

      That is the classic Chicago-school maximize shareholder value argument. A company, the argument goes, cannot spend an extra nickel unless it can demonstrate how this maximizes shareholder value. The usual workaround is to budget that nickel as marketing. So if the company sponsors a Little League team, this is advertising. That wouldn’t apply here, but depending on how everyone regards Pete, the argument would be employee morale, like the fancy Christmas party but actually good.

      1. Mostly Managing*

        I agree, but also?
        This may be the only time I’ve ever seen *keeping* a sub-par employee as being good for morale.
        Every other situation says “get rid of the underperformer and value your good employees”

        1. Ama*

          I think the key difference here is they aren’t just refusing to deal with a problem and expecting the other employees to keep dealing with the issues caused by the employee. They are taking action, and demonstrating compassion for the employee!

        2. Alpacas Are Not Dairy Animals*

          I think this “get rid of the underperformer for morale” stuff tends to get overstated here in the comments section, in the same way “no one ever wants to hang out socially with their coworkers” does and for related reasons. If an incompetent co-worker is causing me more work, I’m only going to be annoyed if it’s clearly nepotism and other people don’t get the same grace or if they’re at a much higher level than me and other people don’t get the same grace. Otherwise, I just gently push the work back at the manager and feel happy that I won’t go on the chopping block immediately if I start slipping in my turn.

      2. Well...*

        Hah, yea, we’re allowed compassion as long as we dump it into a category that’s difficult to quantifiably measure in the short term, so we have plausible deniability to keep assuming the Chicago-school argument is correct in the absence of the ability to disprove it.

        Love capitalism, love the prison and parole system in this country, love all of it /s

    3. Antilles*

      I’ve worked with start-ups before and I can assure you that they waste money on FAR more useless things than “keeping a subpar employee for three months”.

      1. elle *sparkle emoji**

        Yeah, I had a family member who worked at a startup with an in-office bar. They also exclusively used barely functional Ikea furniture well past the point where getting real office furniture would have been cheaper. Plenty of money going to worse uses than a Pete.

      3. JF*

        Yes. And this honestly doesn’t seem to be a lot different than a severence agreement, except for keeping him on payroll

      4. ferrina*

        YES!
        Jake’s comment had me cracking up- this is definitely not the lowest ROI I’ve seen a CEO backing. I’ve seen easily 100k thrown away on things like a rebranding that was redone a year later; “innovative” roles that got nothing done; acquiring a data set and having absolutely no idea what to do with it; wooing “potential clients” who all coincidentally went to college with the CEO and never seemed to actually buy anything….yeah….4 months of Pete’s compensation won’t even make an investor blink.

        And keeping a person who isn’t working out for 4 months? Nah, that’s not even on the register. I’ve seen useless people stay on for years. I’ve seen VPs who had turn over on their entire team, failed to meet benchmarks, but kept on because…..I don’t know, either extreme inertia or they were blackmailing the CEO.

      5. Turquoisecow*

        Oh gosh yes the startup my husband worked for (a tech startup) hired a woodworker. To make marketing products out of wood. Really nice stuff, really not necessary.

      6. Well...*

        I’m imagining entertainment 720 from parks and rec. I want a couch with a roof, too!

      7. Splendid Colors*

        I temped at a biotech startup in the 1990s that used a new round of funding for a fancy executive suite instead of remedying the FDA process violations that shut down the production line. They prioritized “look successful to attract more funding” over “fill backorders, sell products, and BE successful.”

        Needless to say, we got laid off around Christmas that year when the year end financials showed they couldn’t continue.

    4. waffles*

      Equity research analyst here.

      Jake, that’s not entirely correct. It’s a very outdated investor who looks only at costs without considering the bigger picture. Sustainable investing, or ESG investing has become incredibly popular. Treating employees respectfully and with kindness could be considered a part of this investor mandate. The thought would be that good morale would reduce risk of high employee turnover, and associated risks to the business.

      Not to mention that this one salary for a few months is very likely to be immaterial to the overall business and would never register on the radar for an investor.

  4. Software Engineer*

    Pete can still provide organizational value by facilitating meetings and/or becoming a virtual assistant of some sort. Have him be responsible for taking meeting notes, sending follow-up emails, and other small administrative overhead tasks like documentation. I’d love having a dedicated teammate who administratively supports our objectives (but not directly on the project itself). Like a SCRUM master or something.

    1. Earlk*

      If he’s trying as hard as the lw said then there has to be a role he can do that will benefit the organisation if they do insist on keeping him on for the next few months.

      1. Santiago*

        With no disrespect meant towards operations, as an admin-y type person, I don’t see why he cannot support operations. (Building maintenance, note taking, or being someone’s mail deliverer etc.)

        1. Antilles*

          Unfortunately, it’s fully remote, so those sorts of tasks probably don’t exist. In a normal hybrid/in-office workplace though, that would absolutely be a good option because every office tends to have some tasks which would be nice to do but are low enough priority that they get put off for months (if not years). Scanning old hard copies of documents, cleaning out the storage room, organizing the files of someone who left months ago, etc.

          1. TurnedMeIntoANewt*

            Virtual assistants are definitely a thing, so there could be some way to have him do something like that while job searching.

    2. AnonThisTime*

      I’m not sure which exact tasks would be helpful to the org / Pete but if there is some type of work that he thinks he might be better suited for, this could be a chance to build job skills for his next job. Like, the org doesn’t think that they are big enough to need a full-time purchasing person or shipping/receiving person or whatever but he can take that over for a few months and maybe it becomes another accomplishment on his resume. Or maybe the company realizes having a dedicated purchasing person saves time and money and frees up people with PhDs in hard sciences from wrangling terribly out of date purchasing software (that is not even supported any longer) to do the actual R&D that they were hired for. Ahem. I might be projecting a little. But the point is that this could be a time to either build Pete’s skills or fill a hole in the company that not everyone believes it is worth filling but since it’s essentially free for 4 months they are willing to give it a whirl. Or both.

        1. AnonThisTime*

          Not Rocket Lab, though I am not sure whether to be horrified that there is more than one place that does this or gratified to know we are not alone. (We’re much smaller so the dedicated purchasing person *is* a stretch. The out of date, unsupported software OTOH…)

    3. metadata minion*

      I agree that it would be great to find something he can do, but admin tasks like this aren’t universally easy. These sorts of things are actually a category that I’m kind of terrible at since they require a specific type of executive functioning. Good note taking and documentation and prompt followup are skills!

      1. NotARealManager*

        Yes, I wanted to mention this. Admin tasks are not just a throwaway job to give to whoever. Though if it’s in his wheelhouse you can certainly try offering some projects like that.

      2. Sloanicota*

        Ideally you might ask Tiffany if there’s *anything* he was good at, or good-enough-at, and start from there. It’s also possible you could ask Pete about his past experience, and maybe there’s something there. However, I do also see that it would be hard for everyone to have a colleague switch from, say, accounts management to office plant waterer or whatever.

      3. Bunny Lake Is Found*

        One thing that springs to mind is standardizing file names and folders on a shared server. It’s a pain in the butt when you’ve had 7 different people title documents in 27 different ways. Almost anyone can handle changing all the file names in the “Contracts” folder to “Client.DocumentName.Date” or making subfolders for each client and putting documents relating to that client in that folder. Really, you are looking for things that are not really about skill or attentiveness, but are more about needing the man hours. Scanning in paper contracts also falls in this category.

    4. NotAnotherManager!*

      I would not want an underperformer who’s just waiting to be fired handling my admin work. There is an art to that, and it requires organization, attention to detail, and follow-though. Our department admin is the glue that holds a lot of things together, and she takes better notes than I do.

      I am pretty sure there have been multiple comment sections here extolling how critical and undervalued admins are, so it’s a little bit of a kick in the teeth to suggest that a known poor performer be assigned that work.

      1. Software Engineer*

        I agree with your statement that admin work is underappreciated work. There’s also a big difference between being a full-time admin and someone who is responsible for taking meeting notes and sending follow-up emails. We don’t know the full extent of Pete’s performance issues but some people just aren’t good at complex project work but would be quite successful in a secondary, supporting role.

        Also, note taking is rather low-risk. It’d give both the organization and Pete opportunities to try something new without detrimental consequences.

      2. Bunny Lake Is Found*

        I think it is more trying to think of tasks where Pete wouldn’t need to pick up any specific skills or knowledge to be useful. Admin skills are extremely portable. Your talented department admin would probably be equally as successful in a completely different field than the one you work in precisely for that reason.

        I agree though that giving Pete tasks that MUST be done is probably going to go poorly, but every office (and every admin) has a backlog of stuff to get to “eventually” so there must be something that was in the “Complete this year or next year, hopefully?” pile that Pete could work on.

    5. Jennifer @unchartedworlds*

      Only if he’s actually good at any of those things, though!

    6. Buffy Rosenberg*

      Meeting notes, follow up admin and overheard work can be difficult, certainly for some people. The LW mentions missing deadlines; is he organised?

      If he isn’t good at it, that could impact people’s work a lot, and it could really hit everyone’s morale including Pete’s.

      1. Mr. Shark*

        Right. The other question is whether Pete knows he’s on the chopping block and would just be willing to ride out the four months if he’s suddenly moved from his responsibilities to doing admin tasks that maybe don’t match his skillset. I guess they could just tell him why they are doing it, and let him know that he’s going to be let go. But often if you have an employee in that situation, it’s difficult to give them responsibilities because they 1) may not care 2) may actually do things to hurt the business. Since Pete is trying, maybe he will work hard at whatever task is put in front of him to maintain his employment for four months.
        Maybe.

  5. GammaGirl1908*

    Yikes. This is a tough situation, but I can see how my conscience would make the decision for me. That is, I would be able to look at myself in the mirror and say, he is not good at this job, but the punishment for that shouldn’t be going to jail when he otherwise has not done anything to deserve that. If I can keep that from happening at all, I should. While this is far from ideal, this is really just a few weeks of gardening leave in the grand scheme of things, and we can suck this up.

    Then I would do everything in my power to find things for him to do, and help him find a new job before the four months were over, and help him with the transition, and investigate whether there’s a way we can let him go to collect unemployment without violating his probation. But if the difference between the man violating probation and not is a few paychecks that the company can afford? I’d try to suck it up.

    But … woof.

    1. Boolie*

      Aw, i agree. Would it be possible to enroll him in training of some sort? Two birds one stone. You get to prolong his employment and get a better employee out of him for the time being. Maybe he won’t have to be fired at the end after it all! I realize training costs money itself, but maybe it’s an option worth looking at.

    2. ferrina*

      Absolutely. I’d think about Pete’s strengths. If he’s got good attention to detail, can he copyedit things?
      I’d also think about my wishlist of things I never have time for. If I’m looking to replace a software, can Pete pull together a list of potential replacements? Can he do some initial research on reviews?
      These are things you may or may not do anything with, but could be useful in informing your next move.

  6. DEJ*

    Recently there was a story about how the LA Dodgers baseball team has extended a $0 contract to a retired player with mental health issues so that he could keep his health insurance. Something like this would be ideal for the letter writer’s scenario, although I know we’ve discussed that most jobs don’t come with contracts.

      1. Phony Genius*

        Only if he spends any time doing work. In theory, he could be listed as a part-time employee and not be assigned any shifts. (Unless this is in a jurisdiction with a minimum hours per week law.)

    2. GammaGirl1908*

      This too. I (a sports fan) was talking to my mom (not much of a sports fan) about Damar Hamlin, the NFL player whose heart so terrifyingly stopped on the field in the middle of a game earlier this year. He apparently has been given a clean bill of health, and theoretically could play football again.

      We were talking about possible scenarios, and I noted that players in extraordinary circumstances do sometimes get kept on injured reserve or minimum contracts or $0 contracts for a period of time while they get their affairs in order. For example, Devon Still, an NFL player, was a single father whose daughter had cancer. His team kept him on the roster with insurance while she was getting treatment, AND I think they kept him long enough that he would receive a pension, and all rights and privileges pertaining thereto, even if he didn’t play again.

      I said that it would be wise for the Bills to do something similar for Hamlin, both from a financial perspective and from a PR perspective (because the NFL needs to grab all the positive PR it can get). I’m not sure he has any business playing professional football again, but he also doesn’t have to get lopped off the roster tomorrow and sent on his way. They can afford to keep him long enough for him to get his affairs in order and retire with some dignity.

      Anyway, this company in this scenario can think of it the same way. There is more happening than Pete’s on the field performance, so they can put him on the IR for a few weeks and plan for his release.

      1. Llama Identity Thief*

        God, the Devon Still story is such a good one, thanks for bringing up something for me to look up. Since then, he’s started his own foundation for financial assistance families that fall into similar scenarios, and Devon has gotten two Master’s degree and now teaches a virtual course, while his daughter Leah (at only 12) has taken a sharp love of science in hopes of joining the medical field.

        Which makes it really surprising and extra heartwarming that this happened for the Burfict-era Bengals.

        1. Tio*

          Damar set up a fund too, although I just saw that it’s apparently being massively mismanaged by the organizer they brought in? But still, it’s nice to step in for people and hope they’ll pay it forward

      2. Some Bunny Once Told Me*

        This is an extremely common practice in the NHL – players go on long term injury reserve who everyone knows will not be coming off of it. Since LTIR salaries don’t impact the salary cap it’s pretty much standard practice that players who’ve, say, had too many concussions to continue playing to just ride out the remainder of their contract into retirement.

  7. Jellyfish Catcher*

    This is an employee who had tried very hard, but is not doing well.
    Ask yourself if it was an employee who wasn’t great, but was just diagnosed with a terminal condition, who needs to complete urgent medical treatment in 4 months.
    Would you be ok terminating them now, leaving them with no health care?

    This person would be sent back to prison; I have no idea if he could get another probation release, and it’s hard enough to get a job with a record.
    You did not mention any offensive behaviors or his original offense as a factor in hiring him, so I assume that’s not relevant now.
    The CEO and his manager are on board to go this extra mile; get some legal info
    re risks -then figure out how to do it. Also help him research for another job – but keep him safely employed with you for those 4 months.
    We all need grace at some point.

  8. Cass*

    Any fallout that Pete experiences are consequences of his own criminal activity and incompetence, and no one else’s problem but his own.

    1. Ask a Manager* Post author

      That’s so often not the case at all. I think you’d find it worth taking a closer look at the criminal justice system in practice!

    4. Yes And*

      Except it isn’t “no one else’s problem but his own.” You’ll find that (more generally speaking) policies that make it harder for offenders to find employment (or housing, or generally reintegrate into society) tend to increase recidivism. In this case, it’s entirely possible that OP’s company’s compassion for Pete, allowing him to finish his probation, will pay dividends for the community at large. Of course, that depends on the nature of Pete’s offense, how much time has already passed, the efforts towards restitution/repentance he has made, etc. — about all of which I know exactly as much as you do, which is to say, nothing.

      1. Indigo a la mode*

        This is an excellent point about the societal consequences of shunning people who have been convicted of crimes – not even mentioning the literal cost the rest of society bears to maintain full prisons.

    5. Nesprin*

      I mean, yes, there are many things which are not my problem but which I think are important to give my time and money to because I like living in a civilized society with greater responsibility to each other than ‘every man for himself’.

    6. Turquoisecow*

      You know absolutely nothing about his so called criminal activity so I don’t think you’re anywhere near qualified to make this snap judgment.

      Go get some empathy.

      1. Jellyfish Catcher*

        No, we don’t know about his criminal background. But the CEO and Pete’s manager do have all that information, plus have worked with him.
        So, we can assume that they have discussed all the parameters, are comfortable with Pete remaining for X months and are making an informed decision.

    7. Pippa K*

      You have a truly otherworldly faith in the criminal justice system.

      I’m not even an expert in this field and I’m aware of lots of evidence about sentencing biases, police misconduct, and wrongful convictions, just for a start. Plus, off the top of my head I can think of two cases of women serving time on accessory charges for homicides committed by their boyfriends, long after the actual shooters have done their time and been released. To have such certainty that the system is completely just – well, that takes either lack of knowledge or a lot of callousness. Luckily the former is fixable.

      1. CommanderBanana*

        Yes, and women serving longer sentences after their children were killed by a boyfriend or husband than the actual killer served. Or the woman in Florida who shot at, but purposefully did not hit, her husband who was attacking her and was sent to jail. Apparently the “stand your ground” law just happened not to apply to her, a woman of color defending herself against a physical assault!

        Such justice, much wow.

    8. Michelle Smith*

      You do not know that Pete committed any crimes, just that he has a criminal conviction. Many people with criminal convictions haven’t committed any crimes.

      But let’s assume Pete did whatever it was he was found guilty of or, more likely, pleaded guilty to. I want you to ask yourself whether him spending more time incarcerated around people who have also presumably committed crimes will lead to him being a better citizen or a worse citizen than if he’s allowed to remain in the community, gainfully employed, and not experiencing the desperation that comes with losing your job. I know that I am safer if Pete is employed than if we try to lock him back up.

      Please educate yourself about why people make the choices they do. Learn about how systemic issues impact individual choices and why it’s doing us more harm than good as a society to lock people up instead of rehabilitating them. Then maybe you’ll have more compassion for your neighbors, because whether you like it or not, 95% of incarcerated people will be returning to the community. Do you want them to be more dangerous or less dangerous when they come home?

      1. Good Enough For Government Work*

        All of this.

        The world needs a little more compassion and empathy in it, and I think it’s lovely that OP’s employers have chosen to do this.

    9. Sparkles McFadden*

      Nopity, nope, nope, nope. First of all, the justice system has a lot of inherent biases – racial, socio-economic etc. Second, we are living in a world where there are actually for-profit prisons which is ridiculous and, quite frankly, immoral. Finally, no one exists in a vacuum, and any society is better off with people having opportunities to be productive members of that society than being locked away in an ever-increasing number of prisons.

      It would be far more economically efficient to address the underlying social issues that lead t0 crime. Despite this, many people who vote are against spending tax dollars on social programs, but they seem to be perfectly fine with a whole pile of their tax money going to build more prisons and jails.

    10. Nobby Nobbs*

      Thank you for your contribution, Inspector Javert. Now please go back to nineteenth century France.

      1. Elsewise*

        That comment plus your username makes me really want to see Nobby Nobbs and Inspector Javert get put on a case together.

        1. Good Enough For Government Work*

          I had exactly the same thought!

          I love how in many ways Vimes became a humane Javert.

    11. ragazza*

      Our criminal justice system is known for the unequal treatment of criminal activity based on the perpetrator’s race, income, etc. As well as for sentencing innocent people.

    12. Defense Attorney*

      Reality is not so black-and-white…

      Where I practice, there used to be a felony for 3rd or subsequent petit larceny. (PL, by the way, was capped at $200…) I have represented clients who got a felony because they shoplifted toys to give to their children for Christmas.

      Did they steal? Yes. Was there more to the story? You bet.

    13. Not A Manager*

      Someday, when you need compassion and grace, I hope for your sake that you receive more of it than you have offered here.

    14. NotAnotherManager!*

      We don’t really have enough information from the letter (rightly as that is not OP’s story to share) to assess the fault for Pete’s situation. I am not sure how anyone in this day and age is unaware of the way the criminal justice system works in practice and the many ways in which ordinary people can be caught up in it. Doesn’t even require hardcore research or watching a long, depressing documentary – go watch any of the John Oliver segments on YouTube about wrongful conviction, history of policing, mandatory minimums, jury selection, court fees/fines, plea bargaining, prosecutors, public defenders, etc. There are also about 10,000 podcasts on the subject as well.

      And, if compassion and reserving judgment is not your thing, maybe consider that parole violation puts Pete back into jail, on the taxpayer’s dime, and robbing him of opportunities to become a productive, self-supporting member of society.

    16. Kella*

      Where something is or isn’t your problem is entirely irrelevant to the question of whether it is or isn’t ethical to help with that problem. This is a question of ethics, not responsibility. And ethics says that prison is not an appropriate consequence for poor work performance and should be avoided if its in the power of the employer to do so.

  9. Sola Lingua Bona Lingua Mortua Est*

    I’d be concerned that keeping Pete for an extra 3+ months would delay hiring his replacement for at least those 3+ months, and Pete’s peers would be picking up the slack for the missing productivity (and probably just expected to absorb it out of goodwill).

    If LW can keep Pete without doing that (i.e. replace Pete or pay his peers for their overtime), it starts sounding better.

    1. AnonForThis*

      Yeah, if possible, this is a nice thing to do but you also have to make sure being nice to one guy isn’t overburdening your other employees. Making Tiffany keep giving him work, for instance would be massively unfair to her.

      1. Momma Bear*

        It might be the best option for Pete to be loaned out on tasks he can do to support the division vs just being Tiffany’s burden. Is there *anything* productive he can do? Kind of like looking for work for an intern over the summer with a ticking clock. If the company can hire someone sooner can they be the ones to pick up Pete’s slack, learn the role, and then Pete is transitioned off at the end of the time? Who else can monitor Pete if he’s not working for Tiffany?

        I think it’s kind to allow Pete to job hunt. I would also hope the company extends the same compassion to other employees with difficult circumstances.

        1. Wes*

          Right? He must have skills in something or they wouldn’t have hired him in the first place!

    2. ferrina*

      It will probably take at least 2 months to find Pete’s replacement (assuming they are replacing his role and that the hiring process goes quickly and smoothly). There’s no reason Tiffany can’t list his role now and start the process.

      You do make a good point about morale and productivity. It’s likely folks will notice that Pete isn’t working on anything. If Pete has told people he’s on parole, I think most folks would be understanding; if he hasn’t, it may look like management is keeping on someone who isn’t working on anything. So Tiffany and CEO should keep optics in mind, like giving Pete a low-stakes project to work on for a couple months.

  10. Bex (in computers)*

    There’s something to be said for decency and giving extra chances. These kinds of decisions (letting folks go, mind you, not necessarily the afterthought of “and they might go back to prison!”) are why I never could hack it as a manager and had to adjust my career trajectory.

    I think, so long as the funding is there and Pete’s presence is not having a negative impact on other staff, this should be fine for a few months. See if there is some sort of role you can move him into – people will eventually lose their goodwill if someone is just “paid to goof” all day – but keep him until his supervised time is done (don’t know diff between parole/probation), and then wish him well.

    I say that because it sounds like he’s genuinely trying and making some sort of effort. Respect to the guy and hopefully he lands on his feet.

  11. Junior Assistant Peon*

    Can’t Pete get some kind of crappy retail or fast-food job that would keep him employed and in compliance with the terms of his probation?

    1. I'm Just Here For The Cats!*

      It’s not just having employment. It’s also having a paycheck that actually covers life expenses.

      IMO that’s a problem with folx who come out of prison. They can’t get meaningful and well-paid jobs except fast food or retail. And, depending on the crime they originally committed, they end up being so desperate that they commit another crime. Rinse and repeat.

      1. Warrior Princess Xena*

        You’re not wrong, but from what LW wrote Pete’s not going to keep this job either way unless he manages to have some form of near-miraculous turnaround. Not being on probation will probably help him find a new position more easily, but he’s still going to have to job hunt.

        1. GammaGirl1908*

          It also sounds like keeping him for the few weeks could be the difference between jail and collecting unemployment, which also would tide him over for a while. No one is saying the company has to employ him forever, and nothing about this is ideal, but a few compassionate weeks makes a big difference here.

        2. I'm Just Here For The Cats!*

          Yes but he can be looking for a job that he IS skilled at that gives him the same salary that he has now.

          Also, as someone who has been in the desperate position of having to take any job, if you just take any crappy job you can get, you can get stuck. I took a job because I needed something and I ended up there for 3 years. I was so emotionally and physically tired that it was hard to find the energy to look for other jobs. Then on top of that I had a hard time scheduling interviews and such because of the hours I worked.

    2. mlem*

      That will hire someone on probation, and that will respect scheduling needs like needing to report in at set times? Very possibly not.

    3. Irish Teacher*

      Even that could be difficult if he has a criminal record and possibly a firing on his record. Not saying he wouldn’t get anything, just that there is no guarantee. I mean, there wouldn’t be for anybody (even people who are highly qualified and have no apparent “baggage” can struggle to find work) but I suspect it might be particularly difficult for Pete. Especially if there is a time limit in which he’d have to get another job.

    4. Firecat*

      Did you see ant man? the first 20 minutes was spot on. Released inmate trying to get his life together fired from Baskin Robbins after months of rejections from every job under the sun because he didn’t check the box knowing full well that the box was precisely the reason he was rejected from every single place he applied.

    5. LawBee*

      It’s also not like those jobs are default hires. When I was job hunting and broke, I was desperate for a “crappy retail or fast-food job” and there were none to be had.

      And I don’t have a criminal conviction to deal with.

  12. HonorBox*

    I’m all for keeping Pete around. It seems like a reasonable and kind thing to do, while also not going on forever and ever. I would strongly advocate some sort of conversation with him on as soon as possible, though. Let him know what’s happening and see if there are ways he sees he can benefit the organization. Even with transitioning projects, he’s certainly not going to have enough work to fill 4 months. And if he doesn’t know what’s going on, that’s going to be a morale killer for him, too. See if there are some small-picture things he can do. And reassure him this isn’t about Pete the person, it is about Pete’s fit within the organization.

    1. learnedthehardway*

      Agreeing – Pete sounds like he has tried very hard to do the work he was asked to do, in 2 roles, but wasn’t able to be successful in either one. Perhaps he lacks the training or the aptitude, but he may have other strengths that the org doesn’t know about. Involving him in the conversation to find out what he could do for the remaining 4 months would at least give him some agency in what must be a very embarrassing and humiliating situation. I mean, good on the company for giving him the extended notice, but he must feel like a failure right now. Allowing him to identify something he is good at and that could provide some value to the company might be a dual benefit – to him as well as bringing some value to the organization.

      1. E*

        We kept a woman on and our CEO had her doing things like putting his cd collection into his iTunes and like organize the office – laid back and helpful.

  13. e271828*

    Since the company doesn’t have HR and the LW was not hired for that and is learning as they go, maybe Pete would be a good fit for HR training.

    (I am not insulting the LW, I’m responding to their statement that the company does have staffing needs that are not being met.)

  14. Thomas*

    IF you choose to dismiss Pete, and the criminal justice system sends him to prison because of that, then it is not your fault Pete is in prison. It is the fault of the criminal justice system making demands of a person that are not in their power to meet. After all, in most US states Pete’s employer could dismiss him for any or no reason.

    Like others said, I doubt the terms of Pete’s probation actually require him to be in continuous employment. If the only information you have is from Pete himself, then you should seriously consider the possibility he’s misleading you.

    1. Radioactive Cyborg Llama*

      It makes me weary that people so often talk in terms of what people’s legal responsibilities are rather than what is the right, kind, or moral thing to do. And why not consider that maybe Pete or the LW is confused about the terms of probation before considering that Pete is misleading them. I doubt he was all Snively Whiplash when he got the job, going “if I tell them my probation means I can’t lose this job, then they can’t fire me, bahaha.”

      1. Irish Teacher*

        Yeah, I’d be far more likely to consider that Pete might have jumped to worst case scenario – “oh gosh, I can’t lose my job. What if my probation officer thinks I must have done something really bad to get fired? I’m expected to keep a job. Will I end up in prison?” – than that he is deliberately misleading.

        I’m pretty sure if I were on probation, I’d be freaking over the slightest thing, because the consequences could be so severe.

      2. ferrina*

        100%. LW probably should talk with an employment situation to get a read on the legal obligations and potential implications, but most of us aren’t employment attorneys and even the few that are aren’t in position to give specific advice without knowing a lot more details.

        We are all human beings. We should all ask what we owe to each other, and I agree with Radioactive Cyborg Llama that the harder question here isn’t what we can do but what we should do

        1. SarahKay*

          the harder question here isn’t what we can do but what we should do

          Thank you. One of the big points of this site is trying to help people be better at what they should do, and the company helping Pete sounds like a great example of doing better than just ‘is it legal?’

    4. Nina*

      We have to take letter writers at their word, and LW says that if Pete’s probation is dependent on his remaining employed, then it is, regardless of what the rules would be in your jurisdiction or mine or any other.

      The situation is the criminal justice system’s fault, and to an extent the fault of the society that got Pete into this situation in the first place, but neither of those systems is going to accept responsibility, and also the fault of Pete for doing the crime, but he can’t do anything about that now.

      I see this as more like if I was walking along a clifftop with a coworker who I didn’t really like or value very much (a thing past jobs have required me to do) and the fence suddenly gave way, causing them to fall towards the ocean several hundred feet below. It’s the fault of the fence maintenance crew for not maintaining the fence, and the fault of the planners for building our facility on a crumbling clifftop anyway, and to an extent the fault of my coworker for walking so close to the edge, but I am the person on the spot, and if I have the ability to stop my coworker falling without endangering my own life, I morally must do that.

      Yes, LW should encourage the bosses to confirm the exact conditions of Pete’s probation, but if it turns out that it is as LW has told us, morally if the company can keep Pete on it should.

      1. NeutralJanet*

        We can take letter writers at their word in that we assume that they aren’t lying to us, but also raise the question of whether LW is mistaken or Tiffany and the CEO are mistaken or Pete is mistaken, or yes, Pete is lying (it’d be a weird lie to tell, so I’m inclined to think he’s not, but there are some weird people in the world). Letter writers aren’t infallible–if they were, a lot fewer of them would be writing in for advice–so it’s reasonable to suggest that LW and the company might want to double check the conditions of Pete’s parole before making a decision.

    5. Kella*

      Given that none of the pressure to avoid firing Pete until after his probation is over seems to be coming from Pete himself, this seems ungenerous and unlikely.

      If Pete is incorrect about the terms of his probation, it’s much more likely that he misunderstood it OR that he has genuine, possibly evidence-based fears that losing his job *could* jeopardize his probation.

      But even if Pete were misleading them, the worst-case scenario here is that OP’s employer offers a helping hand to a person for a few months, giving them a better shot at seeking long-term employment that is a better fit for him. People don’t deserve to go to prison just because they were fired.

  15. Oh Ann!*

    I’m surprised they didn’t have him attend course work or professional development during the 4months.

    1. Kyrielle*

      Actually, if there’s any training that would benefit an employee in their sector (or benefit Pete in something he wants to do in the future) that’s available on the various free e-learning platforms, spending four months getting paid to do that and job search wouldn’t be a horrid use of his time, either.

      1. Momma Bear*

        I had a job once that permitted me to take basic Office skills classes. Pete might do well to take similar courses if offered. There are many online resources now so Pete could do it from the office.

      2. amoeba*

        Yup, and if the job search leads to him finding a new job before the four months are over, even better for everybody!

        But yes, some additional free stuff, even if it’s just LinkedIn Learning or whatever, would certainly be better than pretending to work on things nobody needs from him. (The company actually paying courses would be taking it too far, for sure, but there’s so much available nowadays…)

      3. Tex*

        Plus maybe a job coach, a state skills refreshing program or someone from the company sitting down with him for a serious of conversations to see what Pete is really good at and may be a good fit for. He might enjoy working with his hands more than an office job (so something like the trades – welding) or he he might like being outside so site surveying.

    2. Sparkles McFadden*

      Yes, I was coming here to suggest this. There are plenty of useful courses that are free or available for a minimal fee.

  16. Rahab*

    It’s depressing to read some of the vindictive comments here about Pete’s situation. I was encouraged by LW’s, Tiffany’s, and the CEO’s compassion and sensitive approach. It’s nice to know there are employers out there like that.

  17. Spinner of Light*

    LW1: I’d think that this company should also take into account why Pete was convicted in the first place. Was his a non-violent crime that involved minimal harm to others? Or was he convicted of domestic violence, child abuse (including pedophilia and/or child pornography), hate crimes, rape, maiming or murdering someone? I’d be far more inclined to take a stricter line towards someone convicted of any of the crimes listed in my third sentence than I would towards someone who’d been imprisoned for, say, insider trading.

    In the comments below, it was pointed out that parole is a privilege, not an absolute right – well, neither is employment! And employers (even well-intentioned and progressive ones who earnestly believe in redemption!) have the right to determine when enough is enough and to whom they want to extend their compassion.

    1. Mid*

      In many places, it wouldn’t be legal to consider that, and it frankly isn’t relevant to the conversation at all. Unless you were present in the courtroom and when the alleged crime took place, you will never know all the details, and what someone was officially convicted of and what actually occurred don’t always align.

      Your own feelings about certain crimes being worse than others are just that—your own personal feelings. I personally feel that white collar crimes, such as scamming people out of their life savings through a pyramid scheme are some of the worst crimes because there is often little to no financial recourse for the victims and there are decades of impact on entire communities, but that’s my own personal opinion, and should not be a factor on if someone deserves kindness and compassion while on parole.

      Would you feel the same way if Pete was sick and needed 4 months of insurance coverage? What if it was an illness he “caused” by smoking/cliff jumping/partying? Drinking? How about if it was an accident? Random illness? Travel? Genetic? None of those should honestly change your opinion either. Either someone should be granted compassion for life circumstances or they shouldn’t. You don’t get to apply your specific moral conditions like that.

      And, you are not the judge nor the parole board. You are not placed in the position to judge someone’s crime, and once someone has served their sentence, they should be allowed to move beyond their past. They were granted parole because they were considered someone who was not a threat to their community.

      1. SharkTentacles*

        There are a lot of prescriptive statements in here about what opinions other people are allowed to have. That’s not how opinions work. It is fairly common for individuals to extend more compassion toward people convicted of drug possession than they do toward people convicted of raping a child.

        Citing another example, many people–despite not personally witnessing the crime–disagree with the court’s decision that Brock Turner was not a threat to his community after serving three months in prison.

        It seems like you’re leaping from the fact that civilians lack sentencing authority to the opinion that civilians lack any standing to act on their own moral judgments. Like everyone, you’re entitled to your opinion, and this particular opinion is a specific morality which you can choose only for yourself.

  18. Artemesia*

    losing his job just as probation ends might well throw him into a tailspin tha tputs him back in jail. I would given how much this company is willing to tr to help, would try to focus on assisting him in getting a job he could succeed at.

    1. Nostalgic Wellness Coach*

      They could ensure that he is listed as eligible for unemployment when they do fire him.

  19. Jes*

    I feel like Tiffany has not done a good job as a manager. It sounds like she has not given him real feedback on his job performance. Why is she redoing his work? He should be the one redoing the work. As HR, it sounds like Tiffany needs to be coached on her management style. It sounds like she is afraid of hurting his feelings, so instead of giving him the tools to be successful in his role, she has just done the work, which has led to him being fired. If she does not work on her management skills, she will find herself in this position over and over again.

    1. Yorick*

      The letter says Tiffany has given him feedback about his work but he hasn’t improved.

      1. Jellyfish Catcher*

        This is not your usual management case; Tiffany has very likely been flexing to Pete’s circumstances, to avoid getting him fired and sent back to prison.

    2. Guacamole Bob*

      I didn’t get that impression at all. The OP says “Tiffany showed me extensive documentation of written communication they’ve had about his work and how frequently she’s been correcting him, asking him to do things differently, and then having to check in and ask why it wasn’t done the way she asked.”

      I trust the OP’s judgment that the performance problems are a Pete issue and not a Tiffany one.

    3. ferrina*

      Disagree. Redoing his work as needed isn’t the mark of a bad manager- it’s a manager that needs the work to be done, and the learning/rework isn’t going to happen in the timeframe needed (it’s very likely that the more experienced manager will be able to redo the work in a fraction of the time of the struggling direct report). The letter says Tiffany has tried to coach him and he hasn’t shown improvement. This doesn’t mean she needs to enter an endless cycle of feedback and fruitless reworks in order to do due diligence.

      I work in a deadline-driven industry. If managers weren’t allowed to redo work, we’d never get anything to our clients on time, and then we wouldn’t have any clients. Yes, when possible we ask for a people to adjust the work based on feedback, but we don’t sacrifice the work for a teachable moment.

  20. Insert pun here*

    I mean, I’ve witnessed layoffs and firings at multiple employers where the people in question were given notice/severance packages that, combined, totaled 4-5 months so…this doesn’t seem that crazy to me. It would be different if Pete were actively malignant or toxic or otherwise a problem but it doesn’t sound like he is—more that he’s just a bad match for the job for whatever reason.

    1. Sloanicota*

      This is a good perspective. In my field severance isn’t very common (maybe in situations like where there’s a whistleblower or some sort of legal issue with the organization?) so this set up seems odd to me – but it may be totally a thing in OP’s field.

    2. NotAnotherManager!*

      Same. When I worked for a law firm, associates who weren’t meeting expectations were given X number of months to find a new job and were left on payroll, the firm website, and the benefits program in the meantime. I also had two instances where a newly created position ended up not working out for reasons not the fault of the person hired, and we absolutely gave them the same consideration and opportunity to find new employment because the position elimination was based on our poor assessment of the need/role. I don’t see why a similar deal could not be extended to Pete, with total flexibility to interview/leave earlier, if the company can afford the cost.

      1. Bunny Lake Is Found*

        Yes, this has been my experience as well. The assumption being that often it is a just a poor match between the associate and either the partner or the practice group, but that the associate is smart and has a good chance at getting a job elsewhere. As we all know, it is generally easier to get a new job when you are still employed, so this set up gives the employee the best shot at getting a new gig before their time at their current job ends.

  21. Tobias Funke*

    Some of the people who commented on this post appear to be laboring under the delusion that nothing bad ever REALLY happens unless somebody deserves it, things always wrap up in 22 minutes with a satisfying ending before the credits roll, and the “criminal justice system” can never do anyone dirty. It’s wild how the same crowd saying not everyone can have sandwiches can be so willfully ignorant about what goes on in criminal court in this country. Please, you will be a better ally to marginalized folks (and whether one likes it or not, there are few populations more marginalized than inmates, people on probation, people on parole) if you look into the egregious abuses of the legal system.

    OP, I am joining the chorus of finding a way to keep him employed. It would be a great kindness in support of someone who sounds like he’s doing his best.

    2. Lady Danbury*

      This!!!! As a lawyer, I’m well aware of the gross miscarriages of justice that happen on a regular basis. And that’s just the ones that we find out about. It’s not beyond the realm of possibility that this might end up with negative consequences for Pete, even if it’s not “supposed” to.

  22. onetimethishappened*

    Is there anything easy Pete could do for a few months while he finishes parole? Easy data entry?, Updating internal docs, taking some professional development classes?

    1. Sloanicota*

      This was what I was thinking. I just don’t like the optics of keeping someone on staff for four months while they’re not contributing and they were documented to be unable to do their job, much though I sympathize. Almost every person who gets fired has a sad story. I understand his current boss isn’t willing to keep supervising him, but are there any projects or tasks he can take on? I’m trying to think through how it would come across to ask him if there’s anything he might have experience with – groundskeeping? Janitorial service?

      1. Artemesia*

        they would be better off working with him to find a job elsewhere he can do.

        1. Sloanicota*

          This did cross my mind also. I don’t mean to be uncompassionate, but I mean, if the standard is making sure Pete is treated as fairly as any other employee who’s being let go (and doesn’t go back to jail)… and if literally all he needs is any form of employment in order to avoid being sent back to prison – there are a lot of low-wage places hiring right now; OP can definitely try to help if they know of roles that would suit him better, but Pete could presumably also get a job in food or customer service as long as the company gives him fair notice (2 weeks? 30 days? What do they usually give people who aren’t malicious?). I do understand they’re available because they aren’t usually great jobs, and I feel for Pete, but at the point where we’re saying his new job isn’t as lucrative or desirable as the one he lost – that starts to be true for any fired employee, right …

          1. Some Bunny Once Told Me*

            I love, so much, that people on this website assume that it’s soooooo easy to get a job in food or customer service – it’s not. Especially not when you’re on parole from a felony conviction.

        2. Jellyfish Catcher*

          Yes!! Rather that made up jobs, set Pete up with whatever trainings are available online for skills that he could handle and/or what blue collar skills he could use.

      2. Lady_Lessa*

        I’ve read that sometimes prisoners learn a trade while inside, but because they are convicts, they cannot get licensed to do the trade. (Not assuming that Pete was ever in jail.)

        I wonder if that could be part of the problem.

        2. NeutralJanet*

          I am still furious about California using incarcerated people to fight wildfires, knowing fully well that people with felony convictions can’t become firefighters. It was never about rehabilitation.

  24. Danish*

    The compassionate instincts are very touching, and I hope you find some way to work it out. Being fired is usually already disruptive to an employees life, but in Pete’s case it could be so disproportionately disruptive that if it’s at all possible to keep him it would be the good thing to do.

  25. WarblerB*

    I’m wondering about the morale hit this would take on his team and how to best handle it. Keeping him on is a kindness to Pete, but the team could be unaware of why he is allowed to work for four months without any projects. If his projects are being given to his colleagues that could create frustration and hard feelings. I’m assuming his manager wouldn’t disclose the reason he is being kept on without work, and the optics to current employees look bad to me.

    1. CTT*

      Yes, this reminds me of other questions Alison’s gotten about the impact of an underperforming employee on their team when there are weird circumstances aren’t public (like dealing with an illness or already being on a PIP). I think whether it can be done without making things worse or frustrating his colleagues is an important factor.

      1. Bunny Lake Is Found*

        I think though the under performing employee issue comes up more when the underperformer is either obviously and visibly doing nothing or when their underperforming is hindering other employees ability to do their jobs. So long as Pete is not blatantly doing nothing in a way that is shoved in the faces of the other employees and Pete’s issues with deadlines and workload are no longer dragging down Tiffany’s team, I don’t see how it will be a major issue. Tiffany/LW/CEO could totally have Pete working on a “different project” and I am not sure the other employees would think much about it.

  26. a clockwork lemon*

    OP, it’s possible I’m off base but it seems like maybe you are unhappy with this approach because the CEO and Tiffany decided on a course of action other than the one you recommended. Four months really isn’t a long time, especially in the context of hiring and firing people, and you don’t say anyone other than Tiffany (a senior manager) is being impacted by Pete’s issues.

    Depending on the timing, there might be practical strategic reasons to keep Pete where he is during his probation period. There are a number of tax incentives available to companies who employ people with felony convictions. Maybe they have a replacement in mind already but that person has to wait out a non-compete, or they’re reconfiguring the role, or Tiffany is waiting for a cohort hiring season to open up, or they want to keep a body around to make sure they don’t lose funding for the position while they start hiring in a competitive job market. It might even be as simple as they don’t want to deal with the rumor mill if Pete does end up in violation of his probation (which is different from and shouldn’t be conflated with parole).

    You didn’t ask for advice in your own position, but if you’re training to become a more formalized part of HR, you should get comfortable with the idea that senior management is going to handle performance-related employment issues in the way that makes the most sense to them even if it doesn’t make sense to you.

  27. Isabel Archer*

    Not weighing in on what could be done here, just commenting on what a unique and fascinating dilemma this is. Just when you think you’ve heard everything…

  28. DJLucas*

    Put Pete on a PIP now – the main condition being that he avail himself of additional mainstream training to help him in his job. Then he can use his remaining months improving his skills on company time, i.e. online classes, or doing his studying for his night classes. etc. He might be an employee worth keeping in several months or at least a jobseeker with a better chance to find new employment.

  29. RedinSC*

    One thing the company could look into is furloughing Pete. He’s still technically employed, they’d still pay his benefits, but he’s just not earning a paycheck.

    I don’t know the laws around this, so that would for sure need to research that, but it could be a away to keep Pete on the books, BUT he’s not drawing a salary.

    1. SharkTentacles*

      This is a great comment. There are a lot of suggestions for how to most fully meet Pete’s needs, which is very sweet (though easier to type than to do) but not the usual framework to apply when firing a low performer.

      It seems like the more realistic goal would be how to effectively end an employment arrangement that didn’t work out, without having a grossly inequitable impact on the employee. For a business that doesn’t have the explicit mission of supporting ex-cons in their return to normal life, I think “not making it worse” is a reasonable bar.

  30. Piscera*

    I wonder if OP’s workplace being 100% remote has presented an additional challenge for Pete. What if he’s not used to working even mostly online, let alone remotely to any degree?

  31. Dawn*

    I appreciate their compassion, but I wish they’d find something for the poor guy to actually do! Surely just because he’s not working on projects doesn’t mean there’s not filing or some fairly entry-level task that regularly gets overlooked; I’ve never worked in an organization yet that wasn’t way overdue for someone to do some cleaning up, either physically or virtually, because people have always had more important things to take care of.

    1. Bunny Lake Is Found*

      Heck, have him troubleshoot/test the company website. Click on every button, follow every link, open it on different devices and browsers. There are always errors somewhere in the code and surely IT staff does not have time for this kind of brute force testing.

      Really, anything where it is not that the task is particularly difficult but that it requires a lot of man hours is a great choice in this moment.

  32. JC*

    The letter writer didn’t say, but is there a reason he can’t move back to his old position? It sounds like they moved him into a role they thought he would do well in but it’s not a fit, why not move him back?

    1. RedinSC*

      I read it in that they moved him from his old position because he wasn’t doing great at that, and so hoped that this new position would allow him to do better, and it’s not working out, either.

  33. Piscera*

    Come to think of it, maybe Pete’s situation isn’t unlike large law firms where some lawyers just don’t make the cut. It may be sooner, or it may be later. Either way they’re generally given time to find new jobs, and meanwhile are still officially employed by the firm.

    I’ve even seen firms put job-hunting staffers on leaves of absence while the staffers job search. Then the staffer doesn’t have a résumé gap, and the firm can gracefully part ways with a disgruntled employee.

  34. Extra anony*

    Does your organization normally give severance pay? Maybe it could be justified as instead of severance, you are keeping him on pay roll.

    In this situation, I would give him a month’s notice so that he starts actively looking but consider flexibility if after a month he did not find another job.

  35. Cthulhu's Librarian*

    Hrm… I wonder if this is a moment where we might borrow the insight of our international commenters? I know that there’s a concept they bring up pretty often – “gardening leave”, I think – where the employee and employer have agreed to part ways, but there’s a notice period, and the employee is paid to essentially stay home and not work for a competitor during that time.

    Would an arrangement like that work for Pete’s probation order? He’s still technically employed, and even drawing a salary so he can support himself – but he’s not coming in and doing work, or making more work for anyone else. And he can hopefully use that time period to find another place to work once the period is over.

    1. GythaOgden*

      International employee here (UK!).

      Our laws around redundancy involve legally mandatory notice periods, during which someone can look for other work and they have to be allowed to take time out for interviews. ISTM this is a better way to handle Pete’s case, particularly if he’d otherwise be kicking about the virtual office with nothing to do.

    2. Madame Arcati*

      I can’t speak for everyone but in my world, “gardening leave” is a euphemism for someone being suspended pending an investigation into a serious allegation. Here you have to have a reason to fire people so if eg someone was accused of eg serious sexual harassment or taking a bribe, you have to investigate because if it turns out not to be true you can’t fire them for it. But they can’t continue to work/interact with colleagues until it is sorted; and if there is a finding against them then they could be fired.
      So this wouldn’t be something for Pete as this is serious disciplinary proceedings which he doesn’t deserve plus I imagine he would have to or certainly should tell his probation officer and that might reflect badly.
      Tbh I think non-US types, at least Brits might be less able to offer a solution than to be able (not very helpfully) to say the situation would probably not arise – given that it’s being a bit crappy at the work not egregiously awful I’d think taking four months to fire someone for poor performance would be no biggie. PIP with the end date set accordingly so it’s no surprise, soubds reasonable to me.

  36. Anon for This*

    First of all, probation isn’t parole. Pete has never been to prison. Probation is typically for first time offenders with no criminal history who present a low risk to their community. Think low level drug offenses, theft, isolated incident of assault that could have been a bar fight, DWI etc. The terms seem to be used interchangeably by some commenters, but they are definitely not the same.

    The conditions of probation are not typically as ironclad as the OP seems to believe. As others have said, the rules are typically that you be employed or seeking employment. Assuming that you are meeting all of the other conditions of your probation (clean UA’s, monthly reporting, etc.) it is very unlikely that a probation officer would violate someone for losing a job. As you might imagine, low paid PO’s don’t love doing all the paperwork required to violate someone who is otherwise meeting their required conditions.

    And frankly, while it is very kind to treat Pete this way because, yes, the justice system is whack sometimes, it’s also likely unfair to another employee who may also not be performing but will not be provided this same 4 months to remain on the payroll while basically doing nothing. If the matter hadn’t already been decided, I would have requested his probation paperwork detailing the terms. If he has already disclosed to you that he’s on probation and the offense that put him there, there is no issue requesting the specifics outlined in the document. I’d be willing to bet that it says he needs to be employed or seeking employment. The company could also frame it as a layoff to prevent the appearance of Pete contributing to his own unemployment.

    1. Heather*

      It’s wild to me that so many commentators assume that the terms of his probation must be strict and onerous rather than Pete may be exaggerating the strictness of his employment requirement in order to try and stay employed by the company when he knows things aren’t going well. I can understand why they are trying to help him, but paying him for months while others employees pick up the slack also doesn’t seem fair to me.

  37. amoeba*

    I agree that keeping Pete on is the compassionate thing to do. However, could you encourage him to start his job search now, even on company time if he doesn’t have anything else to do? With the understanding that if he finds something new before the four months are up, he’ll take it?

    If he’s not working anyhow, I can’t see how it would hurt the company to have him use his time for writing applications, and if you’re lucky and he finds a new job before the time is up, everybody would actually benefit – he because he doesn’t end up unemployed after the four months and you because you don’t need to keep paying him.

  38. BaskingInMyWindowlessOffice*

    It feels bad to keep him on the books, and presumably paid, while doing nothing. Surely there is something he can do. I can’t imagine this will be good for him either.

Comments are closed.