Cover Your Bases Before Termination: An Attorney’s Perspective
No one likes letting people go. In fact, most clients I work with dread the idea of firing people—and for good reason.
Termination can have a profound emotional, psychological, and professional impact for the individual on the receiving end. Of course, getting fired is often thought of as a negative circumstance, but it can also be a positive situation, especially if that person is in a position that they’re just not cut out for.
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Employers may want to consider terminations from this positive angle, as most organizations wait too long to let problematic employees go. Often, this is because leadership is nervous—about whether termination will be carried out in a lawful manner, about the potential for a wrongful termination claim, or simply about hurting someone’s feelings.
As managers hesitate, however, operations suffer. Employees who are ill-suited for their jobs have a negative impact on financial performance, customer satisfaction, and the productivity of their co-workers. In some cases, when employers wait too long to terminate employees who engage in discrimination or harassment, rates of absenteeism and turnover increase, organizational culture deteriorates, and the potential for a legal claim multiplies.
In short, sometimes the only real option is to show someone the door. Now, how do you do that? How do you achieve that ultimately positive result—for the individual and the organization—while reasonably minimizing your risk?
It starts before the termination ever begins.
As an employer, if you wait until supervisor tells you, “this guy has got to go,” then you’ve waited far too long.
Start by identifying policies that are in place—not only the operational policies and rules you expect workers to follow, but also your internal procedures for carrying out terminations. If you ever need to prove your rationale for firing somebody, policies are critical for demonstrating that you made expectations clear to that employee.
Ultimately, whether you’re in front of a jury or the Equal Employment Opportunity Commission, you’ll be using your policies to demonstrate the real, legitimate, non-discriminatory reason for termination.
Moreover, you will need to explain to the jury or the EEOC that what you did was not only not discriminatory and legal under a “just cause” contract provision, but that the decision was made for a good cause. You will need to show that what you did was fair and, in fact, the right thing. This isn’t technically a legal standard, but it’s the standard many juries hold to.
How can you demonstrate fairness?
By showing that the employee was given fair warning, that they knew what the rules were, and that they were given a chance to improve or at least explain their rationale for their behavior. In other words, you made it clear to the employee what they needed to do and they still didn’t do it.
Manager training is equally important. As your frontline staff, managers ensure good performance and respond to rule violations. Accordingly, they need to know how to handle terminations. If you’ve got managers who are going to improvise and fire somebody without an investigation, or without any warning whatsoever and no documentation, your organization is going to be in trouble. At the very least, your chances of some kind of negative legal result will increase.
Similarly, make sure you educate your employees. Simply put, your employees should know what the rules are. If they understand the rules, and they know what they’re supposed to do, it’s very difficult for them to say, “Well, nobody ever told me what I was supposed to do. Nobody ever said, ‘this is how you wanted this task performed.’”
You can demonstrate that employees understand the rules through documentation. Indeed, documentation is key for demonstrating that managers and employees have been educated and trained.
Looking for more from our Termination Best Practices webinar? Good news: you can now view the entire thing (eligible for SHRM & HRCI credits, by the way), on demand and for free, right here. And don’t forget to download our Termination Best Practices ebook!
This post is adapted from an excerpt of a presentation given by attorney Stephen J. Roppolo during our recent webinar, Termination Best Practices.
Steve is a managing partner of Fisher Phillips, and frequently counsels organizations on training procedures, litigation exposure, and everyday workforce concerns.
Thanks, Steve, for sharing your insights over the course of our webinar.