I’ve had the opportunity to answer more than 3,000 “hotline calls” in the past 10 years. On many of those calls, the employer wanted to know if they’d be sued for terminating someone.
After representing hundreds of employees during my litigation career I can tell you that “how” an employer fires an employee has a lot to do with an employer’s propensity to get sued. Here are some guidelines to consider:
- Don’t create a lie to make the terminated employee feel good. Recently I received a hotline call which described how an HR consultant working with the company advised them to lie about the reason for the employee’s termination by claiming that it was a “layoff.” Horrible advice! The problem with this approach is if the employee ends up suing you for whatever reason you’ll then have difficulty proving that poor performance, etc. was the reason for their termination. Telling employees the truth is the best way to stay out of the courtroom — and don’t ask HR people legal questions that require a lawyer’s judgment!
- Don’t underestimate how traumatic the event will be for the terminated person or tell them how tough it was on you. Yes, it’s tough for you, but guess what? It’s even tougher on them and their family. Feeling bad yet?
- Don’t lose sleep over the termination. Where did management fail this employee? Did the relationship begin with a bad hire? If you’ve done everything you can to be responsible to the employee, then you should have no fear or other negative emotion associated with letting them go. Terminating poor performers allows them to work someplace where they’ll have the opportunity to perform better. It also relieves the burden on your remaining employees. Again, if you have any concerns, what is the source of those concerns?
- Don’t embarrass the employee. Try not to terminate them in front of the rest of the team, make a scene of their walking out of the office, etc. Terminate in a dignified manner, even if the employees have been less than dignified themselves. You don’t have to stoop to their level. If the employee is belligerent or obnoxious, do what you must to calm the situation and protect yourself.
- Don’t turn the termination into a one-hour conversation. By now there should be no surprises. Employees should have known that if they didn’t improve their performance they would be off the bus. Don’t negotiate or sympathize — just let them go.
- Don’t make promises you’ll regret. In a well-known case, a school concerned about the employee’s backlash (he claimed he was falsely accused of sexual harassment) offered a letter of recommendation on which a subsequent employer relied. As it turned out, the employee was once again accused of sexual harassment. When the victims of this alleged sexual harassment sued the new employer, they cross-complained against the previous employer for misrepresentation. Don’t be that previous employer!
- Finally, don’t try to buy off terminated employees with a release for two weeks of severance — all this will do is invite them to see a lawyer. Don’t offer a release when you fire employees for poor performance or because you’re in fact in an economic downturn. They don’t deserve the former and you can’t afford the latter!
If you’re an HR That Works Member, follow the Pre-termination Checklist.
