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Firing 101 Part 1—Stop, Listen and Look

by Stephen Bruce, PhD, PHR

From a legal standpoint, terminations are the most dangerous actions managers take. In this video, HR Daily Advisor Editor Stephen Bruce talks about what you need to know to reduce your risk of lawsuits.

This is Steve Bruce for the HR Daily Advisor. This is the first video in our Firing 101 series—Stop, Listen and Look.

If you are like most managers, terminating an employee is the most difficult, or at least the most unpleasant, responsibility you face. You probably want to get it over with as quickly as possible. Don’t think that way. STOP, LISTEN, and LOOK.

First. STOP.  From a legal standpoint, terminations are the most dangerous actions managers take. Most big-dollar lawsuits are filed by employees who have been fired. Many of the suits could have been avoided if the managers involved had stopped and taken time to consider the situation carefully.

No matter what the offense, final action does not have to be immediate. You always have time to investigate, reflect, and seek advice.

Some situations seem to demand immediate action. For example, employees have been openly insubordinate, or have broken important rules like fighting or stealing. Or maybe their latest infraction is “the last straw” in a long string of offenses.

In these situations, you may be tempted to “be a real manager” and “do what has to be done.”

You are angry (and the anger may be justified), but that is not the frame of mind to be in when making critical employment decisions. Acting on the spur of the moment will result in ill-considered actions, irresponsible public humiliation of an employee, or other lawsuit-provoking behavior.

That’s not what you want. When you terminate, you want to be able to say that you evaluated the situation carefully and made a reasoned, rational decision.

Another important for reason for delay is that managers often need help to determine the appropriate action in a given circumstance. For example, ?Managers often aren’t familiar with all the legal issues around terminations. ?Managers may not be aware of the significance of protected actions the employee has taken, such as complaining about pay, organizing a union, or requesting leave. ?Also, the organization may be planning other personnel actions of which the manager is not aware. For example, a reduction in force or a restructuring.

Finally, it is generally in the organization’s best interest for termination decisions to be made by a group. It shows that a reasoned decision was reached, and it assures that a few years down the road, if you have to go to court, someone who participated in the decision will still be around to testify.

For all these reasons, it is imperative to involve an HR expert to insure that the situation is handled appropriately.

Also, remember that you don’t have to give up your management rights to delay action. For example, you might say: “I’d like to see you in my office at three, and we’ll discuss this matter.” “It’s clear that we have a serious problem here. I want to consider our options; I will talk to you tomorrow morning at 9.”

Next, LISTEN—Give the employee a chance to explain. The employee may have an acceptable explanation. (One newly-transferred employee, about to be terminated for excessive tardiness, revealed to HR that she was actually arriving early every morning to train her replacement in her former department.)

Also, giving the employee a chance to explain is an expected element of fairness. Should the employee sue, you don’t want to face an accusation that you “never even gave the poor employee a chance to explain.”

Finally, you would like to get the employee’s explanation on the record so that later on he or she won’t be able to concoct a fictional, but perhaps believable, story for the jury.

Then, LOOK—look at the whole story before making a termination decision.

Here are questions to ask:

  • Is an investigation in order?
  • Is termination the typical punishment for this infraction?
  • Would a lesser punishment (such as a suspension) be more appropriate?
  • Are there additional factors that might indicate the potential for a retaliation or discrimination claim?

For example, Has the employee in question asked for family leave, become disabled, or announced a pregnancy? had a talk with OSHA about safety problems, or made a formal complaint to the EEOC? Those situations require caution.

The next videos in the Firing 101 series explore these important issues in detail. For terminations and all your HR challenges, we recommend HR.BLR.com. This is Steve Bruce for the HR Daily Advisor.

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  1. Anonymous        
    March 12, 2013 10:35 am

    Great points–it’s up to HR to rein in those managers who so often seem to be in a rush to terminate.