Tips For Handling Terminations

The termination or discharge of an employee is one of the most difficult aspects of a manager’s job. But allowing a poor performer or a disruptive employee to keep working can have a negative impact of the productivity and efficiency of others. Remember that the manner in which a termination is handled impacts the morale of the entire workforce as well as the employee being rerminated. These tips will help reduce the possibility of a legal claim following the termination of an employee. As always, you should obtain the advice of counsel before the final decision is made.

1. Follow your policies.
Make sure you have followed your own policies as closely as possible, especially your progressive discipline policy, and have a business-related reason to justify any deviations.

2. Be consistent.
You don’t necessarily have to treat every employee exactly the same, but you should treat “similarly situated” employees (those with similar jobs, performance histories, and length of employment) as consistently as possible or have business-related reasons for your inconsistencies.

3. Investigate fairly and thoroughly.
Before you terminate, make sure you have conducted a fair and complete investigation, particularly in cases of misconduct. In addition, the investigation report should document the reasons for the termination and show that you followed your own policies.

4. Consider the legal risks.
Analyze the risk that the termination will cause legal claims. For example, consider the potential for claims of discrimination, wrongful discharge, retaliation, violations of the Family and Medical Leave Act, failure to accommodate under the Americans with Disabilities Act, or wage and hour violations. Review your decision with counsel. If there are concerns about the matter you may consider asking the employee to sign a release agreement. In such an agreement, the employee waives the right to sue in exchange for some extra consideration, such as additional severance pay.

5. Document the reasons for termination.
Records in the employee’s personnel file should accurately state the reason for termination and include items such as performance appraisals reflecting problems and suggested improvements, counseling memos, written warnings, and investigation results that document any misconduct. The employee should have seen these documents in prior discussions about the issues. The employee should not be surprised by the termination decision.

6. Plan the termination meeting.
Consider the appropriate time for the termination meeting. Select a suitable location to preserve the employee’s dignity and privacy. Choose the appropriate attendees for the meeting and prepare all necessary or final paperwork (such as COBRA notice and final pay).

7. Tell the truth.
Give the employee a factual reason for the termination. Avoid the temptation to rely on the at-will employment legal defense and thus not give a reason. Also, don’t call the termination a “layoff” when it’s actually based on performance problems or work rule violations. Misguided attempts to “soften the blow” can cause confusion and lead to discrimination or wrongful discharge claims. The employee is more likely to assume your “real” reason is illegal or discriminatory.

Instead, be straightforward and factual, but avoid unnecessary elaboration or injection of personal opinions. Don’t try to downgrade the reasons for termination to spare the employee’s feelings or indicate you don’t agree with the decision. Such comments may encourage a lawsuit and be used against you.

8. Limit discussions about the termination.
Do not discuss the termination with anyone other than those individuals who have a legitimate business need to know about it, like the employee’s immediate supervisor, your supervisor, and legal counsel. Doing otherwise can lead to claims for defamation, invasion of privacy, or other personal injury.