It may not be easy or fun, but it is necessary. With proper preparation and a good attitude towards it, terminating an employee can be done with the minimum amount of disruption and the most positive good that can come out of the situation. Not to mention, you'll feel better about the scenario and sleep better at night. Also, layoffs might signal the end of this business relationship, remember we live in a small world and how you treat employees as they walk out the door can impact the reputation of both you and the company for a long time to come.
The litigious nature of the United States and common decency still demand that you follow certain protocols when you fire someone. Most employers know that terminations should be handled carefully. However, mistakes in the termination process, even by well-intended employers can, and frequently do, contribute to unnecessary, protracted and expensive litigation. The termination process requires advance planning and professional implementation. Given this, employers should handle terminations in a very discreet and compassionate manner in order to reduce the risk of litigation.
There are several steps you can take to fulfill your legal obligations to terminated employees and avoid escalating any hostilities over the firing. Following the right process can ease the stress of the situation, and help to ensure that you don't end up with a wrongful termination case.
Here are some guidelines that will ease the trouble of letting some employees go.
- Do first, understand the details about the employee's performance upon which your decision is based.
- Do Offer Healthcare. Losing your job is a stressful time for anyone and the thought of not having healthcare can add considerable anxiety to employees.
- Do try to preserve an employee's dignity. It's natural for a person being fired to feel resentment toward you and your business. So, everything you do in a termination meeting should be designed to minimize, as much as possible, this natural resentment.
- Do set up a proper termination meeting. You'll want to conduct the meeting out of sight and earshot of any other employees, in a quiet place where you won't be interrupted. The meeting room should be in a location that does not alert other people as to what is taking place.
- Do get to the point. If employees still don't have an idea that you are going to fire them it is better to let them know within 30 seconds of the beginning of the discussion.
- Do show empathy for the employee. As a moral person your duty is to show empathy for the employee who is leaving. Some will reach acceptance immediately. Others might cry. Some might get angry. Your actions will be noted and judged whether you like it or not, and your actions in this situation can have some long-term consequences about how others perceive you, as well as other more practical consequences like litigation.
- Do make a plan for all work in progress. Once the employee you fired is gone, there will invariably be team work, clients and projects that need to be dealt with. As you piece together your firing strategy, make sure there are no gaps in productivity and that you keep your employees motivated.
- Do consider paying the employee some type of severance pay. Maybe the dismissed employee still needs some help in moving forward with things in his life for some reasonable period.
- Do review the decision to terminate.
- Do explain the cause of being fired. Even if the state allows employees to be fired at will, still it is best when you explain the cause and escape the possibility of a lawsuit. You don't have to spend a lot of time going over every last detail of the employee's conduct that led to the discharge, but you should provide a reasonable explanation.
- Do Select the Right people to meet with the Employee. When you are conducting the final meeting, it is preferable to have another person in the room with you. Doing so helps prevent any, "he said, she said" situations.
- Do treat the terminated employee fairly and respectfully.
- Have a plan in place for terminating employees. Everyone coming to work for you will someday have to be terminated. If you have this attitude, one of being prepared "in case" you have to terminate someone at any time, you'll most likely take the time to have a plan in place for terminating employees.
- Do offer guidance to the employee in transition. Agree to provide good references to solid employees who leave the company. If you have a close relationship with the employee, offer to make some phone calls on their behalf and check in with them periodically.
- Do the firing in a private place. Don't make them "walk the gauntlet" past co-workers. You can use your office, or a closet with good lighting. Just be sure it is somewhere comfortable.
- Do offer to answer the employee's questions. Let the employee know you're happy to help with information about benefits, severance if applicable, or other logistical concerns.
- Conduct the termination face to face. Even if your call isn't being recorded, you should not terminate an employee on the phone. Instead, make plans to have a conversation in person, even if this is inconvenient for you. The employee that is getting fired deserves a face to face meeting so they can ask any questions they may have.
- Consider consulting with legal counsel before doing the termination. Employment attorneys can quickly assess whether or not the employer is in a defensive position to argue cause and if not, the elements of a reasonable separation package.
- Do calculate wages that will be due for the performed work.
- Be professional. Have everything ready and in order, and move smoothly from one part of the meeting to the next. Be organized and follow a script if possible. Have all paperwork ready to sign, a check for the employee if appropriate, and all logistical elements in line ready to go.
- Do read the employment contract. If you have a written employment contract, then this contract should be reviewed before dismissing the employee. If the contract is well drafted, it should contain a termination clause which defines and limits your liability for severance to the dismissed employee.
- Consider writing a reference letter. With this you will help your employee to find new employment. This is not only good for the employee, but will also benefit the former employer as it will significantly diminish the risk of the employee bringing any legal claims against you.
- Ensure that only those who need to know about the termination are informed. News of a looming termination should not be leaked to the affected employee or any other employees in the organization.
- Do allow employee to pack up belongings in privacy. Employers should arrange for a trusted manager or human resources staff person to meet the employee after hours. Do not force the employee to pack up his or her belongings in front of other staff members.
- Do calculate how long will the meeting last. The purpose of this meeting is to inform the employee of the decision, not to debate it or review it. If the basic information is prepared in advance, including written materials, then the job can be done in a relatively short period of time.
- Do let your employee respond. Let the employee speak their mind. Acknowledge any valid points and tell the employee that you appreciate their input and candidness.
- Do end on a positive note. Thank the employee for their contributions and wish them luck in the future. When you finish, stand up and shake their hand.
- Do inform the employee of any rights or entitlements that they may have coming.
- Do make it clear that the decision is final. If you take the position that the decision has already been made, all alternatives have been considered, and all the other managers or owners are in agreement and that you are merely giving this information to the worker, you'll find it easier to keep your cool and keep control of the situation.
- Do collect company possessions from the employee. You'll need to collect any keys, cell phones, company car, company credit cards, or any other property belonging to you from the employee.
- Don't terminate an employee on the spot unless the actions are so bad that they require immediate removal from the workplace, such as violence against others.
- Don't worry about being the bad guy. As a manager, your duty is to ensure that the employees are performing their duties accordingly and when you decide that some of them are not doing their job you should react to the benefit of the company.
- Don't do it on the phone. Even if your call isn't being recorded, you should not terminate an employee on the phone. Instead, make plans to have a conversation in person, even if this is inconvenient for you.
- Don't blame others for your decision.
- Don't prolong the termination. Begin the conversation with the situation and clearly state the employee is being let go immediately. Also, make eye contact to show your conviction in the situation.
- Don't send somebody else to terminate the employee you have hired.
- Don't lie. Lies get you in trouble. The person being fired will see right through you and will begin to think about ways he can make you pay for being dishonest. Don't lie to the employee about why you're firing him or her in order to save feelings.
- Don't get into an argument. If the employee requires explanation, fine. But don't debate the issues as that only opens you up to more lawsuits.
- Don't go into a termination meeting without knowing what you are going to say. Allow approximately 15 minutes for the meeting, and have an opening statement prepared that will set the tone for the meeting, briefly explain the reasons for the termination, and the effective date.
- Don't withhold money from their paycheck. You cannot withhold money owed the company from an employee's final paycheck. If an employee owes the company money, consult your employment attorney.
- Don't make promises you can't keep. Don't tell an exiting employee, you'll be happy to provide them a reference when in good consciousness, you know you cannot.
- Don't violate laws. Firing someone for going on maternity leave, military duty or whistle-blowing can only bring you a lawsuit. Familiarize yourself with the laws and make sure you're not leaving the door open for a discrimination suit.
- Don't do this where others can overhear your conversation. Reserve a conference room so you can have a private conversation, even if this means delaying the firing a day or two.
- Don't do it alone. Have a second management person come in and take notes, so you can focus on the conversation. Respect the privacy and confidentiality of everyone involved by meeting in a private area. This gives you an individual who hears and participates in the employment termination in addition to the manager. This person can also help pick up the slack if the hiring manager runs out of words or is unsure what to say or do next.
- Don't Fire Without warning. Unless an immediate, egregious act occurs, the employee should experience coaching and performance feedback over time. Before you fire an employee, try to determine what is causing the employee to fail.
- Don't tell anyone about the termination unless it is on a "need to know" basis. Other employees can spread the gossip and you don't want the person about to be terminated to find out before you get the chance to deliver the news yourself.
- Don't e-mail or text the news. As hard as it may be to deliver it, give the person the respect of doing it in person. Also, terminations via e-mail can be a huge PR nightmare.
- Don't make people sign documents they are not ready and comfortable to sign.
- Don't let the employee believe that the decision is not final. Hopefully, you thought long and hard before scheduling the termination meeting. You have your reasons, if you choose to provide them, reasonably articulated, and a coworker on hand to support you. In fact, tell the employee that the purpose of the meeting is to inform her of your decision, which is final. This is kinder than misleading the employee.
- Don't do it in front of the entire company. As bad as it makes the employee that is being fired publicly look, screaming at them that they've got ten minutes to get off the premises in front of your entire staff actually makes you look even worse.
- Don't give access to the Information system to the employee you have fired.
- Don't take it personally. Don't consider yourself a bad manager, you tried your best to work with them letting them go is simply the last resort. Ultimately, it is not your fault, but theirs.
- Don't make that plan with other employees.
- Don't rush through the terminating meeting.
- Don't make the reasons up to avoid looking bad. If it's a cost-cutting measure, tell the employee that. But if it's just a case of them not being a fit, disguising a firing as a layoff is just plain unethical.
- Don't allow the employee to leave with company property in his possession. Ask the employee to hand over his key, door pass, badge, smart phone, laptop, tablet and any other company-owned equipment or supplies during the termination meeting.
- Don't require from the employee to sign a release for a termination package on the day you fired him. A terminated employee should be allowed at least a full week to consider a termination package, as this gives the employee an opportunity to review the package with his or her lawyer and/or financial advisor.
- Don't interrupt, contradict or try to defend yourself or the company. Arguing will only create resentment and frustration on the part of the employee.
- Don't fire an employee without a checklist in hand. This keeps you organized and on track when you need to fire an employee. The employment termination checklist ensures that you cover all appropriate topics during what can be a stressful meeting for all participants.
- Don't go into details. You don't need to go into too much detail, but simply state "You're being fired for coming to work smelling like onions," and move on with it.
- Don't offer help in finding them new workplace.
- Don't fire anyone on Friday or right before a holiday. Maybe the fired employee will need support from any support service and they are closed on weekends and holidays. Also, being terminated earlier in the week allows the person to get a jump-start on finding a new job.
- Don't overreact and fire an employee in the excitement of the moment.
- Don't apologize, you can only express regret that the employment didn't work out.
- Don't take responsibility for the failure. You may want to simply express regret that the opportunity did not work out.
Firing an employee is never an easy thing to do, you must carefully plan all the important things ahead and keep in mind the DO'S and DONT'S we mentioned here. Keep everything professional and don't let your negligence bring you a lawsuit. Consult with a lawyer and take a look at the procedure before terminating an employee's work contract. The actions you take really do matter to the employee who is being fired and to the coworkers who will learn quickly that the employee is gone.
Marc Aaron Goldbach has devoted his nearly 25 years of experience in employment law and had fought many cases aggressively and exclusively for employees in wrongful termination, discrimination, whistleblower, sexual harassment, maternity or medical leave and unfair labor.
If you feel you have a few claims to make against your employer or employee, then the best thing to do is to contact him at (562) 216-8296/ (562) 696-0582 or schedule online appointment at: http://www.goldbachlaw.com/long-beach/employment-lawyer/