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by Mike Bishop

 

Terminating someone from their employment can be a traumatic event for both the “firer” and the “firee”.  However, accepting and dealing with this reality can help the HR professional with the understanding that terminating employees is an art that can be developed successfully.

Dear Ask Rita,

I am new in my HR position with my small nonprofit employer. I have about 2 years of prior experience with another employer. However, in all that time, I never had to fire anyone. Last week, one of our longest tenured employees engaged in some questionable dialog with their supervisor that didn’t end well. The employee called the supervisor some mean, hurtful, and yes, profane names. This conduct violates a number of our policies and standards of conduct, and we have made it very clear that such a violation will result in termination of employment.

Indeed, the decision has been made to terminate this employee and it falls to me to carry this task out. I have never done this myself but have received a lot of advice about doing this but I’m still nervous and apprehensive. Can you give me some idea how to do this properly and relieve my anxiety?

Thanks,

I DON’T WANT TO DO THIS

 

Dear Don’t:

Let’s be honest, people do not like to fire other people from their jobs. Whether justified or not, whether all good reason and common sense exists to terminate the employment relationship, it is never the preferred thing a person wants to do in the course of their employment. As psychologists will attest, many people in this modern day and age equate their sense of self-worth with their job. The termination event may, and often does, result in a shocking and immediate deprivation of that sense of self-worth on the part of the terminated employee. From a psychological perspective, it also gives the person doing the terminating the reputation of an executioner or someone who has a callous attitude toward the personal impact that termination will have upon the employee.  This is especially the case when a long-term employee with long term relationships is also, by necessity, terminated.

While it is generally true that no one wants to do this unenviable job, there are some who are better at it than others. Those who are good at terminating the employment relationship have an ability to transcend the personal and to effectively communicate to the person being terminated that this was a necessary part of the professional task of the person doing the firing.

Thus, when terminating someone from their employment, the procedures and the legal requirements are easy to list and to enumerate; carrying out the task convincingly, effectively, and with due regard to the integrity of all concerned, is much more difficult.

How to terminate someone from their employment or “It’s not personal, it’s only business.”

At the outset, it is always important to make sure that the decision to terminate is based on good and legitimate business reasons. Many employers believe that being an “at-will” employer immunizes them from any serious consequences –meaning lawsuits.

This belief is often a mirage that hides serious risk if the terminated employee belongs to any protected classes or engaged in any protected activity. Consideration of this risk should be analyzed before making the final decision.

In addition, it is worth considering whether, in any case, a disciplinary action short of termination will properly address and remedy the violations leading to the decision to terminate. In your situation, if this was an isolated incident in a long and productive career, a lesser form of discipline –such as a final warning –might be more appropriate than terminating the relationship that benefited both parties for a long while.

Assuming the decision has been carefully considered and evaluated, and is well supported and documented, the decision should be implemented promptly and without any hesitancy on the part of the employer. Any delay will make the decision more difficult to implement as time proceeds and could lead to further disruption in the workplace by allowing the conduct or activity that led to the decision to terminate to continue.

In addition, one of the inevitable factors of any delay in implementing a termination decision is Murphy’s Law. As just one possible situation that might develop if there is a delay, an employee, having a sense that they will be terminated may preempt your termination meeting by presenting a doctor’s note that indicates that they a have a medical condition. that needs accommodation under the Americans with Disabilities Act.  This creates a serious layer of risk if the termination is carried out after that communication since the employee is now in a protected class, and the employee can claim the termination is retaliatory.

Promptly implementing the decision to terminate avoids this risk.

At any rate, here are some suggestions to make the process of terminating the employee, hopefully, easier for both the person being terminated and the person terminating the employment:

Provide the communication of the fact of termination to the employee outside of public view.

It is almost inevitable that the meeting where termination occurs will be emotional and the employee will be upset. Under these circumstances, it is best to conduct the final interview in a neutral workplace location where other employees would not be likely to intrude or invade the privacy that the occasion warrants.

If possible, have a witness present at the termination.

Depending upon logistics and staffing, and if the circumstances warrant, it is appropriate to have another person sitting in with the person conducting the termination to observe and perhaps serve as a buffer or moderating force between the emotions that may develop during the course of the interview as well as to verify and corroborate what is said and what happens. Notes should be taken by the witness, turned into a memo to document the event, and placed in the employee’s personnel file.

Keep discussions and explanations to a minimum.

The discussion with the terminated employee should be brief and professional.  It should be to the point and no elaborate discussion or analysis should be provided. Many times, an employee will ask why or seek explanations or other information as to the sources of information leading up to the termination. Any responses should be limited and kept to a minimum. The communication itself should be in candid, yet compassionate terms and designed to impress upon the employee that the decision is final and not subject to negotiation.

Also, it is likely that pleas to your sympathy will be made (“I just bought a BMW”). It is important that such a plea not divert you from the task at hand. Let the employee know that you do have sympathy, and even empathy, for them, but that the decision is final.  It is appropriate to let the employee say what they need to say but, you need to stay on message and not engage in banter.

Letters of Recommendation and References

During the final interview, a question might be raised about the employer’s policy on references and letters of recommendation. If the employer has a policy of not providing references other than confirmation of employment dates and position held, an employee should be advised that no deviation from that policy will be made in their case. If the employer has a policy providing references and letters of recommendation under certain circumstances, circumstances as to whether references or letters of recommendation will or will not be forthcoming in the employee’s case should be disclosed. Again, the communication should be brief, to the point and professional, to insure the employee understands why the policy is being applied the way it is in their case.

Review of Documents

During the final interview, the employer should come to the meeting equipped with all necessary documents that may exist regarding the employee’s obligations to the employer upon termination, including matters such as the return of company property and any other agreements involving trade secrets or confidentiality agreements. The employee should be reminded of their obligations under those agreements and reminded that you will expect the terminated employee, to act in a professional and compliant manner with their obligations. All COBRA disclosures and forms, unemployment benefit information, and final check(s) in the correct amounts should also be ready to hand to the employee.

Also, at that time ask the employee to return any items of a non-personal nature that belong to the employer such as keys, credit cards, and other materials/items that should be returned as soon as possible to prevent any retaliatory efforts of sabotage which might be undertaken by the employee.

During this process, efforts should be made to secure and disable from the employee’s use of any computer and e-mail resources they may have available to them.

This procedure will help to avoid sabotage or deleting from those sources any important information or information that the employee might have stored that would violate company policy.  This step will also prevent the employee from printing or downloading information on their computers that they might feel will help them in any claims they might later make.

After the final interview is completed, provide an escort for the terminated employee back to their workstation.

The employee should be allowed to obtain any personal property they may have at their workstation. Once that personal property has been secured, the employee should be escorted out of the workplace promptly, but with dignity and in a professional manner.

Remote Termination

In this time of remote work, the face-to-face meeting that has traditionally been the way of terminating employees, we have discussed his been replaced by other methods.

It is always best to meet personally to communicate the termination, but if that cannot or should not be done, it is best to send a termination letter with the reasons for the termination, with all necessary documents and the final pay by certified mail, return receipt requested, or by an overnight delivery service. The letter should indicate that the termination is effective upon receipt. An alternative to this process is to call or text the employee to advise that they are being terminated effective upon receipt of their letter and final pay. You would then follow up by sending the letter and check by overnight mail.

You can also use Zoom to terminate an employee, however, because in most States, final pay must be provided at the time of the termination, using Zoom may present a risk this requirement will not be met.

By doing this, receipt of the final pay is at the same time of the termination, which, in many States, is required, or penalties might be imposed for not timely providing the final pay upon termination.

Conclusion

Terminating someone from their employment, as you recognize, can be a traumatic event for both the “firer” and the “firee”.  However, accepting and dealing with this reality can help the HR professional with the understanding that terminating employees is an art that can be developed successfully.

Leaving legal risk aside, compassion, clarity and certainty in the communication of the decision to terminate will make the situation more tolerable for everyone involved and may even make you more comfortable with the process in the future.

Who knows, you may become one of those rare individuals who are “good at” terminating employees.

About: Mike Bishop , is a member of the State Bar of California and has been admitted to practice in a number of Federal District Courts in both California and Ohio. During his legal career, he worked for 32 years with a Sacramento law firm where he focused on employment litigation in both State and Federal courts.

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