Employee Termination Best Practices
One of the worst things you can be a part of as a manager is a termination. These conversations require delivering life-altering and devasting news, often to someone you may genuinely like. They are also one of the riskier moments for a company. The person losing their job will be frustrated, if not angry, and will often have friends and family telling them to talk to an attorney. If not handled properly, and sometimes even if handled properly, you’ll soon find yourself in receipt of an outrageous demand from a plaintiff’s lawyer.
This does not mean you should be afraid to make tough decisions. Believe it or not, for most jobs employers are permitted to fire someone for any reason - even a bad reason - as long as the decision was not discriminatory. Where you can go wrong is by engaging in a hasty or disorganized process. When you do that, the rationale will appear unsupported, which leaves the door open to argue the real reason was discriminatory.
So what do you do? Three tips:
1. Slow down and talk to outside counsel for a fresh look at your facts. A fifteen-minute conversation can save you from years of litigation. So you’re firing someone for poor performance? A good attorney will ask you what the person got on their last performance review and whether the poor performance is documented. You want to let someone go because they do their work too slowly? A good attorney will probe where there is potentially a disability you need to accommodate. A conversation with a neutral outside party will help you solidify your reasoning and approach – it’s worth the time.
2. Deliver the bad news and move on. No one gains anything by a belabored conversation in this situation. Every extraneous word you say also increases the risk that you will say something inaccurate or that makes the decision feel more personal. And despite what you think, nothing you say is helping the person - if anything it’s making them feel worse.
3. Treat paying severance in return for a release on a case-by-case basis. Paying severance can communicate that you are doing what you can to help the person transition, and avoid the risk of a claim down the road. In other cases it could mistakenly signal there is a legal claim you are worried about. Make this a part of your discussion with counsel, but when in doubt, do what you think is the right thing
Take your time, be thoughtful, and you can save yourself from a long legal battle.
*This blog is intended to provide a general summary of best practices and does not constitute legal advice. You should consult with counsel to determine the exact legal requirements in a given situation.
