September 09, 2015
Although there are exceptions, firing someone is not pleasant. It is frequently confrontational, and these days everyone seems to be concerned about getting sued. Many companies try to avoid litigation by having severance packages available, even where employees are being fired for misconduct. As a result, there is great pressure on supervisors and managers to "get it right.
A good termination interview begins with good cause for the discharge. While "good cause" is not required in a nonunion environment, good cause is essential to beat later assertions that the stated reason for termination was a pretext for illegal discrimination. The three main reasons for discharge are: misconduct, poor work performance, and elimination of the job. If the reasons why you want to terminate an employee do not
lead to one of these three areas, seek legal advice.
Before a termination decision is delivered, employers must carefully craft the reason for the termination. I frequently tell employers at seminars that I would rather know the facts that resulted in the discharge than a characterization of the misconduct or poor work performance. For example, I had a phone call from a client not too long ago that an employee who had been fired for sending a vulgar email wanted a written reason for his termination. In addition, the unemployment insurance agency for the State was asking for the reasons for termination. I suggested that they advise both, in writing, that the employee had been terminated for writing "the attached" email. There was no need to go into all the reasons why the contents of the email were inappropriate.
In the case of poor work performance, I prefer seeing something like the following: “You are required to make seven widgets each day. You have been averaging three widgets a day for the past two months. This level of production is not sufficient to warrant continued employment.” A conclusory reference to “unsatisfactory work performance” is not compelling or convincing.
One of the questions I am frequently asked is “Is a written document required?” The answer is “no,” but it is not a bad idea. At the very least, the employer should prepare a script that details in an appropriate way why the person is being discharged. A written document, however, shows confidence. If you were afraid to have the former employee show the written document to a lawyer, you should probably rethink the decision in the first place. Unless you can convince 12 strangers that you had grounds to terminate an employee, you should not do it. For the same reason, if you cannot commit to writing why you are firing an employee, you should rethink your decision.
Once you have a script or the written document ready, questions come up as to timing and who should be present in the meeting. Timing is a difficult issue. Normally, the end of the day at the end of the week is a perfect time to fire someone. Many times, however, it is not convenient or practical to wait. In the case of poor performance or real job elimination, timing is not as critical. In the case of misconduct, make the decision as quickly as possible and communicate it to the employee. If misconduct is apparent, but there was still investigations to complete, suspension pending termination can be done right away.
It is always a good idea to have at least two management officials present during the termination interview. The person making the decision, as well as someone from human resources, are two logical people. I do not recommend having a crowd, as you can go overboard with the number of witnesses, but if an additional person is necessary, that is not a problem.
The purpose of the termination interview is not to engage in a debate. The employee is there to listen; the time for answering questions is over as that should’ve happened during the investigation. If you are using a written document, it may be enough merely to say: “you’re being fired, and the reasons are contained in this termination letter.”
The termination interview, however, should never be used to make you feel better about the termination. Never apologize, never say that the decision was difficult, never say that the decision was made by somebody else, and make no statement that would allow a plaintiff’s lawyer to argue that the decision was less than airtight. Never lie. Calling a discharge a layoff or a corporate reorganization is an invitation to have a court
find that false reason to be a pretext for discrimination. As I stated earlier in this column, you do not necessarily have to call a thief a “thief.” Instead, you terminate that individual for inventory shortages in his department, or something else that suggests or proves thievery.
Finally, do not put the employee in handcuffs and have him escorted out by armed guards. Yes, that is an exaggeration, but you should keep in mind that the less fanfare attending a termination, the better it will be for the employer. There are cases where employers have engaged in serious demonstrations in the guise of “security” that have given the impression that the employee engaged in far worse misconduct than he or
she actually did. Defamation lawsuits can be brought.
Remember, the purpose of the termination interview is to make sure that the termination sticks. Bad execution at the interview is one way to ensure that the employee will either come back to work or collect a lot of money. Do it right.