Tips for Employee Terminations

Authored by Steve Holden. Published in the Sacramento Business Journal July 2015.

For most people firing an employee is about as pleasurable as a root canal with defective anesthesia. It is, however, a regularly occurring reality of running an organization. Knowing how to properly fire an employee will reduce the discomfort and the likelihood of negative consequences. Unfortunately, there is no “proper” way to fire that applies in all cases. Each termination should be viewed as unique with a specific plan that fits the circumstances. In developing the plan managers should be aware of some of the most common tips on employee terminations.

Analyze the Wisdom of the Decision

Prior to finalizing and communicating the termination, check the facts and the reasons for the decision. Often this means having the decision reviewed by a fresh pair of eyes and reaching a consensus that termination is appropriate. If the fact checking and analysis will take some time consider a suspension instead of a rushed termination decision. Confidence in the wisdom of the decision will result in confidence in the communication of the decision which can reduce an employee’s perception of unfairness.

Consider the Timing

Often termination decisions relate to triggering events such as a major mistake or the failure to achieve a specific performance measurement. Sole focus on the triggering event can be problematic. Checking to see if there are other relevant events or incidents in the recent past or the near future is important.  For example, firing an employee who recently complained about sexual harassment because the employee failed to meet the quarterly sales expectation could lead to a retaliation claim. This is not to say that the employee cannot be terminated for the legitimate reason of poor sales. It means that failing to account for the harassment complaint in the termination decision and the timing of it will likely create evidence which makes defending the decision more difficult and costly.

Be Prepared

Outlining what should be communicated to the employee and getting all the paperwork in order will help reduce the anxiety and discomfort that is often part of a termination. This preparation includes anticipating the employee’s reactions and developing a communication strategy for each. Utilization of a termination letter which is carefully crafted and explains the reason(s) for the termination is often a good idea. Providing the letter to the employee at the termination meeting will demonstrate organization and confidence. The letter also serves as the “script” for communication during the meeting.

Consider the Location, Day/Time and Participants

The negative consequences of a termination can be reduced by carefully planning the day and time of the termination as well as the location and participants. A day and time when the employee will have the option of not facing other employee is generally considered best. Likewise, a private location is preferred. Choosing the right participants is often the most important aspect. The best choices will depend upon the circumstances, but they should be confident, well-spoken individuals who will make credible witnesses. They should have a calming influence. They should be individuals that the employee respects. And, to the extent possible, one participant should an individual who would be viewed by the employee as a supporter.  While more than one employer representative should participate, too many can lead to the negative appearance of intimidation or “ganging up.”

Focus on Performance

Communications about the termination should focus on specific facts and not the employee as a person. Although behaviors that trigger termination decisions may be personal characteristics of the employee, discuss them not in the context of personal characteristics, but rather in the context of how the employee’s performance failed to meet the expectations of the job.

Be Direct and Honest

Too often employers are less than direct and honest in the communications with the employee. This is typically because they want to be nice or they lack confidence, and it is very dangerous. It can result in the creation of terrible evidence of pretext in a termination that is absolutely lawful and proper.

Don’t Go It Alone

Employers should recognize when they need assistance with a termination. For employers who deal with termination infrequently, the need for assistance may accompany each termination. For those with lots of experience and regular practice, the need may be in special red-flag cases only. In either event, a competent professional should be selected and they should have solid experience with how each piece of the termination is used (and distorted) in litigation. Only then can the employer truly reduce the risks of liability associated with a termination.