HR Management & Compliance

Firing: Lay the Groundwork … or Else

The list of dangers that employers face in firing employees is seemingly endless. How can you safely fire a poor performer who’s pregnant, who’s on medical leave, or who just filed a workers’ compensation claim? What about the employee with the perpetually bad attitude who also happens to be trying to organize your workforce or complaining about discrimination?

The quick answer is that no amount of education, training, or preparation can completely protect you and your company in these and other difficult situations. But one thing you can do—and probably the most important thing you can do—is to lay the proper groundwork for firing employees, says a recent BLR Special Report.

That means giving truthful evaluations of their performance at regular intervals, conducting fair and thorough investigations before firing them for misconduct, following your company’s disciplinary procedures, and documenting every decision you make every step of the way.

Give Frequent, Honest Evaluations

Conducting regular performance evaluations offers a lot of benefits, not the least of which are providing employees with guidance and feedback, improving their performance, and increasing productivity overall. On the other hand, failure to give regular evaluations or to fill them out honestly can expose your company to all sorts of potential discrimination and retaliation claims under federal and state employment laws.

Why are performance evaluations so necessary? Doesn’t it seem that employees who aren’t doing a good job would know it? Unfortunately, that frequently isn’t the case. In fact, studies have found that when asked to rate themselves on a given skill, the poorest performers consistently gave themselves above-average grades.


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And then managers compound the problem by giving good evaluations to problem employees. When you finally reach the point where you can no longer put off firing an employee, he or she has no reason to think that performance is a valid reason. “I’ve always received favorable evaluations. If I were such a poor employee, my manager would have said so, right?”

Unfortunately, the only conclusion such an employee can reasonably draw is that you had some other, nefarious reason for the termination, such as race or age.
Watered down evaluations are too often the “smoking gun,” making it appear to the jury that an employee was fired for some other reason than the one the employer offers.

Train Your Supervisors

If overly glowing evaluations are a problem in your company, chances are it’s HR’s fault—not your supervisors’. Many companies provide supervisors with little to no training on how to evaluate employees or exactly how important honest evaluations are.

The irony is that the reason most supervisors give good evaluations to bad employees is that they’re afraid employees will sue if they get a bad evaluation. They don’t understand that their strategy (or lack of one, depending on how you look at it) has the exact opposite effect from what they intend. Rather than reducing the risk that an employee will sue, giving good evaluations to employees who don’t deserve them can only turn out poorly in the end—and that often means ending up in litigation.


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Investigate if Necessary

Before firing an employee for doing something illegal, unethical, or just plain wrong, you have to decide whether the employee actually did what he or she is accused of doing. To do that, you have to investigate the allegations, somehow weeding through contradictory statements from different witnesses and deciding who’s telling the truth.

It’s a difficult and thankless task, but a necessary one. And it’s important enough that you need to make sure you entrust it to the best possible person for the job. It’s your choice whether to hire an outside investigator or lawyer or assign the task to someone within your company.

In tomorrow’s Advisor, more in laying the groundwork for firing, plus an introduction to the unique guide just for smaller—or even one-person—HR departments.