by Renee Mielnicki, Esquire
We are frequently called upon to help our clients with the process of terminating an employee. Believe it or not, how you handle this process may determine if you will hear from your former employee again through some type of lawsuit. Severing ties with an employee is never easy, but unfortunately, it happens a lot in the working world. It’s a very emotional process for both the employer and the employee. Terminations have a lot of legal implications so they require proper handling.
Let’s pretend we have made a decision to terminate an employee because of their poor performance. We have had this employee on a written performance improvement plan for months. This employee clearly knows why he is failing at his job and what he has needed to do to improve, but he just hasn’t done it. Once you have decided to terminate this employee, what does the rest of the process look like?
Well, to me, it almost always looks about the same. Step one is to review your documentation and decision to terminate this employee with your attorney or a qualified HR professional. Before you let anyone go, you should first make sure your decision to do so is legally sound. Once you have the approval of a professional, the next step should be to review a prepopulated checklist regarding items such as gathering company equipment, revoking privileges to company databases, company emails and reviewing what is owed in their last paycheck. Once we have gone over that list, we need to think about how we will accomplish each task on the list. For instance, I often alert the IT professional shortly before I am about to terminate an employee. As soon as the news is delivered, I inform the IT professional that it has been done, who then locks the employee out of all company systems right away. All of these steps should be planned well in advance.
We next need to pick the date, the place and the people involved in delivering the bad news. There should be no real delay between the behavior that has led to your decision to terminate the employee and the delivering of the news. Why? Because lawyers can poke holes in the reasons for your delays, and you don’t want that.
Once you have your date, you want to be strategic with “the where” and “the who” which are involved in the termination meeting. Think about how your workplace is set up and who may be around at the time this takes place. You do not want to draw any attention to a termination discussion for several reasons. One, it creates drama and gossip, which are not productive. Two, it can embarrass the departing employee and make them even angrier and therefore more likely to run to a lawyer. Another good tip is that all termination discussions and reasons therefore should be kept confidential, both before and after a termination occurs. Sharing this information, or even spreading rumors and gossip about these matters, do nothing to help the company’s mission. In fact, it does quite the opposite…it slows down production and can effect morale. Sharing this information is also like the old “telephone game.” By the time the message gets from the person who started it to the last person who heard it, it is not even close to the truth. The only people who should know about these matters are those involved, including the employee’s supervisor. Remaining employees should simply be told “he is no longer with the company.”
Who delivers the message to the employee you are letting go is also very important. First, there should always be two employees from the company present when the message is given. One reason is for safety (remember this is very emotional) and the other is to act as a witness to what is said (or not said) during this meeting. You do not want to choose anyone with whom your departing employee has bad blood because that will just increase your chances of drama and even violence. Pick people he or she will see as neutral and make sure they are management since these processes are for management only.
Once we are at the meeting with the employee, the next question is, “what do we say?” The answer to that question once again is….not much. At the meeting, you should have your termination letter in hand and this is the time you are going to give it to him or her. (For more information about termination letters, see my previous blog). One rule of thumb is that a termination should never be a surprise to an employee. In my example, this employee should already know his performance is below our expectations and he is in danger of losing his job. Therefore, it should come as no shock to him when he is called into a meeting with his supervisor and the HR Manager, but is not told the subject of the meeting until he gets there. He should already have an idea what this unidentified meeting is about when asked to attend.
The two management employees in the room should know well in advance who will be speaking and who will be the witness. The speaker should be very brief, simply telling this employee, “As you know, your performance has been very poor over the past few months. For that reason, the company has decided to terminate your employment effective today.” At that time, the employee is then provided his termination letter and the meeting should end. Sometimes there will be questions, accusations or even crying when the news is given. But I always say, try to not respond, unless it’s to repeat what they already know like, “You have been on a performance improvement plan for quite some time and have not improved.” In my opinion, these meetings should take no more than 60-90 seconds or the employer has said way too much. The more we say as employers in these meetings, the more likely we are to be faced with a lawsuit. Examples of why are:
- We say something that isn’t true or contradicts what we have already said or documented; or
- We say something illegal. For instance, “You are getting older and can’t seem to keep the same pace as those younger than you.” Another example might be, “Being a mom and trying to work is too hard.” Or, “I’m really sorry about this,” which suggests the employer did something wrong, when it was all the employee’s fault.
So for that reason, what we say should be very brief. Just like the termination letter, the verbal message is simply to give our general reason and the date our decision is effective. After you have told the employee the why and the when, you simply get up and lead the employee either out of the building or to their desk to collect their belongings. Again, these type of details should be thought out and planned well in advance because each circumstance is unique.
Keep in mind these situations can be a bit more complex, such as with multiple layoffs. Those types of processes require a bit more planning, but can generally work the same as far as messaging and delivery. The same is true if you are using severance packages. Additional preparation and planning go into terminations involving such and can make it look a bit different than I describe above. If there is a one-size-fits-all-rule about terminations, it is the less you say the better it will be, for all parties involved.
If you are an employer with questions about terminations, please contact our HR professionals by calling 724-864-8745.
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