Kinder, gentler Terminator: how to say ‘Hasta la vista’ to employees without getting sued

Terminator Genisys, the fifth installment in the wildly popular action film series, hits theaters this week. Over the last 30 years, the original Terminator, played by Arnold Schwarzenegger, has transformed from a soulless assassin with no regard for others to a cyborg protector with a heart of gold (actually it’s mimetic polyalloy, but you get my point). Skull of a human size robot

When it comes to being a Terminator at your business, I hope your methods also have evolved since the 1980s. If not, here are five tips for handling employee terminations in today’s legal climate:

Have supporting documentation. The holy grail of HR is documentation, so before you terminate for misconduct or performance issues (or any other reason), be sure that the employee’s personnel file backs up your decision. Nothing torpedoes a defense faster than an employer that bases its termination decision on an employee’s poor job performance without any documentary evidence that the alleged issues were ever recorded or addressed with the individual.

Be consistent. Consistency is key to showing that you’ve treated employees fairly during the termination process. Before pulling the plug on an employee, ask yourself, “Am I treating this employee the same as I would any other employee under the same circumstances?” Also ask, “Is this employee’s termination consistent with the company’s policies and procedures?” If you cannot answer both questions with an unequivocal “yes,” you may be setting your business up for a lawsuit.

Provide reason. In every wrongful termination lawsuit, the employer’s defense is rooted in the reason given for firing the employee. That’s why it’s essential to provide a departing employee with a reason–the REAL reason–for your decision and document it in the personnel file. While you should be forthcoming with your motivation for letting an employee go, less is more when it comes to communicating the decision. Explain the controlling reason or reasons and avoid unnecessary discussion about secondary issues. It’s quite enough to tell an employee that his position is being eliminated or that he failed to satisfy the requirements of his performance improvement plan, without adding that you really never liked him anyway.

Don’t retaliate. Retaliation claims are easy to assert and difficult to defend and result in more employee verdicts than any other type of employment law claim. As a result, it’s imperative that you don’t fire an employee for engaging in protected activity, such as reporting alleged discrimination or harassment, complaining about the terms and conditions of employment, asking for a disability accommodation, or taking medical leave. Further, when faced with firing an employee who has engaged in protected activity within the six months prior to the proposed termination date, you should consult experienced employment law counsel before proceeding. That way, you can ensure that you avoid any inference of retaliation that may arise based on the decision’s timing.

Allow employee to leave with dignity. Employees who believe they were treated with respect and dignity during the termination process are far less likely to sue than those who are unceremoniously handed a banker’s box full of their possessions and escorted out the front door. Although you should be firm and brief in your discussions with departing employees, there is no reason to make the situation harder on them than it needs to be.

Following these tips for employee terminations may not help you save John Connor and the whole human race from future cybernetic annihilation, but you will become a Terminator who is compassionate and fair and, in the process, help protect your business from a costly lawsuit.

I’ll be back … in August with another blog post. Until then (I gotta say it), hasta la vista, baby!