HR Management & Compliance

10 Sins of Termination (#1 Time to Prevent Lawsuits)

Terminations are no picnic for anyone, but since they are the genesis of many lawsuits, it’s worth learning how to do them right. Handling them carefully can save cash, calm frayed nerves, and maintain morale and productivity. (As long as you don’t commit one of these 10 sins.)

Here are our 10 sins of termination:

Sin #1. Terminating Rashly in a Fit of Anger

Boss: That’s the last straw, you’re out of here—and I mean now!

There are at least three things wrong with an on-the-spot termination:

  • People don’t make good decisions this way.
  • There are many factors to considered before terminating.
  • Being disrespectful encourages people to sue.

Bottom line, wait until you talk to HR.

Sin #2. Terminating in Public, Especially in a Humiliating Way

Boss: [in front of many employees] Johnny, you’re a little too slow and a little too lazy to stay in this job. I’m making an example of you—you’re fired.

Public humiliation is a lawsuit magnet. There’s no good reason to treat people this way, and a host of reasons to avoid it. Another similar problem is the “perp walk,” that is, very publicly marching someone to the door carrying a box of belongings with a security escort.

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Sin #3. Terminating Without Checking with HR

Boss: HR’s going to take forever on this—I want this nut job gone today.
Boss: Your last day is today—I’ll talk to HR to manage the administrative details.

HR needs to be able to evaluate a number of factors before there is any termination:

  • Consistency. Have other similarly-situated employees been fired? If not, there’s a lawsuit brewing.
  • Appropriateness. Is this a significant enough infraction that termination is reasonable?
  • Contract. Is there a contract or agreement that terminating would violate? Or maybe an implied contract of good faith and fair dealing?
  • Special circumstance. Perhaps the whole department is going to be let go, or maybe there’s some situation of which the manager is not aware, for example, a complaint filed.

Sin #4. Termination that Looks Like Retaliation

Boss: I don’t care if you just filed a suit, you’re fired.
Boss: You think you can complain about me to management and keep this job?
Boss: Well, you are fired for your performance, and I’ll just add that you’re not much of a team player, having complained to my boss and then gone to the government agencies.

Whenever a termination closely follows a protected act, there will be an obvious suggestion of retaliation. That’s a tough one to defend, unless there is very strong documentation. It’s best to do a thorough evaluation in these situations. Frustrating as it is, people who file complaints do have, at least to some extent, an “umbrella of protection” over them.

What’s “closely follows”? Of course, it’s a grey area, but most experts agree that “weeks” is close and “months” not so close. However, if there is any other evidence linking the two acts, all bets are off, no matter how great the time difference.

Sin #5. Offering a False Basis for a Termination

Boss: I’m very sorry to tell you this, John, but we have severe budget cuts and I have to let you go. [Thinking: The budget cuts aren’t all that severe, but I don’t want to tell him his performance was poor—it’s bad enough he gets fired.]

Managers often want to soften the blow of a termination by blaming it on “budget cuts,” or “department reorganizations,” or “the company is going in a different direction.”

The problem comes when you rehire, and the former employee finds out about it. He or she will assume that since the given reason was false, the termination was because of discrimination or retaliation. The jury needs to ponder, Was the manager lying then, or is the manager lying now? Either way, the manager’s a liar.

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Sin #6. Terminating Without a Reason on the Basis of “At-Will”

Boss: I don’t have to give you any reason why I’m firing you–you’re “at will.”

It’s true that unless there’s a formal contract of some kind, most employees are employees at will, and that means they can be terminated at any time for any reason or for no reason. And the flip side is that they can leave at any time.

But here’s a news flash—people don’t like to be fired, and they’re not going to blame themselves. They typically have no reason to think their performance is subpar; so the reason must be because of their protected status—that is, their race, sex, age, or disability. Now your company is in trouble; you have to begin your defense by proving that, yes, your managers are so stupid that they fire employees for no reason. And then you have to explain why “no reason” is more likely than the illegal reason. It’s not going to go well.

In tomorrow’s Advisor, the rest of the sins of termination, plus an introduction to the guide especially for managers of small, or even one-person, HR departments.

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