Terminating an employee can be a sticky task. Getting rid of someone can cause hurt feelings, and sometimes worse, a legal nightmare. The best way to avoid a tricky situation is to have a plan in place. Below we outlined 10 steps to a smoother termination.
Expert James W. Bucking, partner and co-head of the Employment Department at Foley Hoag LLP in Boston, blogging on HR FactFinder, offers 10 tips for handling terminations and avoiding lawsuits. Here’s some of what he says.
- Know the Facts. As an employer, you have broad authority to compel employees to talk to you. Take advantage of this right, says Bucking. Talk to supervisors, co-workers and subordinates, and make a record of what they tell you. Speak with the employee involved because it’s a lot better to know his or her story at the time of termination than to hear it first at a deposition.
- Review ALL the documents. Be especially wary of “stellar” performance reviews, says Bucking. Also review the disciplinary records of other employees in the same job or area. “There may be perfectly good reasons for treating employees who seem similarly situated differently, and you need to consider these differences in advance,” he says. Also, look everywhere documents concerning the employee may exist, including the files, electronic records, and e-mails of the supervisor and everyone else involved.
- Create new documents. “Sometimes the problem with a termination is that there are few documents supporting your decision. “There is nothing wrong with creating such documents—in fact, it is a good idea,” Bucking writes. But never make things up on or backdate the documents you create.
- Beware the electronic scourge. Many people and documents are typically involved in discharge decisions, and today’s technology preserves every bit of the “untidy, behind-the-scenes process.” Litigation discovery can reveal it for the world to see. Have an attorney involved at all stages, Bucking advises, as this brings things under attorney/client privilege. If an attorney is not involved, then avoid creating a permanent electronic record.
- Don’t lie. “The worst thing to do when terminating an employee is to be dishonest as to why. Yet this is a common mistake,” Bucking says. Like most people, employers hate confrontation and hard truths, so firing for poor performance is often disguised as a layoff. “But most discrimination allegations turn not on direct evidence (like racial slurs), but on ‘pretext,’” he says. “An employer gives a false reason for termination, creating the inference that the real reason was unlawful.”
- Don’t be cruel. To you, a termination may be just business, but there’s no way to avoid an employee taking it as personal. That’s likely to lead to a lawsuit, where “cold-heartedness does not play well before a judge, and especially a jury,” Bucking says.
- Conduct the termination respectfully. Don’t fire in public. Instead, be as private, respectful, and decent as possible.
- Have backup. Two people should be present at the termination, says Bucking, and both should take detailed notes. Record anything material that the employee says, and also what you say, especially on the reason for your action. Be sure that what you tell the employee agrees with your previous oral and written statements.
- Pay all compensation. Make sure that all monies due to the employee are paid immediately. In many states, all compensation owed must be paid on the day of discharge.
- Don’t forget about non-compete, non-disclosure, severance, and other agreements. Make sure you live up to any obligations to departing employees, and make sure they understand any obligations they owe you. Bucking also suggests considering new agreements such as a release from legal action based on the termination. “It may be a great investment to pay a few weeks of severance for absolution from litigation,” he says.
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If you need help creating a termination plan for your company, reach out to us. We can help determine a respectful and ethical termination, and a smooth transition for your business afterwards.
