by Stuart Silverman
Usually, after a termination, the first thing an angry former employee does is call an employment lawyer. Over the past few decades, however, a growing number of disgruntled employees instead return and inflict bodily injury—or worse—on their former bosses or those the employee feels is responsible for his or her termination.
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Here are five practical steps that employees can take in the termination process to reduce the risk of employment lawsuits and workplace violence.
1. Plan for the Termination
If we view termination as an event that is likely to increase the risk of employee lawsuits and workplace violence, we must take precautions to minimize the risks. I strongly recommend the use of a termination checklist.
On the checklist, we should include items such as the substantive reason for termination and special risks to consider, including possible claims of discrimination or retaliation if there are any open investigations. More so, we should also include the legal arguments for any challenge to the termination.
| For tactical strategies to reduce the risk of security breaches, workplace violence, and legal liabilities, attend Workplace Violence Prevention Symposium 2017, the nation’s leading workplace violence prevention conference. Learn more! |
For example, if the reason for the termination is poor performance, include such questions as: Was the employee counseled previously about performance problems? Is the counseling documented? Have we done performance reviews on a timely basis, and, if so, do they reference performance problems? Has the employee been warned previously that if performance does not improve, he or she will be terminated?
By “reverse engineering” a potential lawsuit, we can focus on what needs to be done before termination to minimize risks.
2. Have a Designated Company Representative Deliver the News
No one likes to deliver bad news. Designate a person to deliver the news—someone who has the people skills, personality, and respect to deal with the situation. This will help for several reasons.
First, a designated person will take the personality conflict out of the situation. Over time, this designated person will be comfortable in the role and will keep the termination meeting calm and focused. Also, the supervisor behind the termination may not be trained in the “niceties” that are involved in a termination meeting.
Perhaps the supervisor assumed the role because he or she was a fantastic worker, and it was the logical progression. While that person may be fantastic at what he or she does within the company, that does not necessarily translate into having the skills needed for the legal or human resources world of lawsuits and workplace violence.
Human resources professionals spend a fair amount of time learning what can and cannot be asked in an interview so as to not ask a question that could lead to an employee lawsuit. But, for some reason, we often do not train for what can or should be said during an employee termination. The irony is, the settlement value of lawsuits as a result of workplace violence is astronomically higher than the settlement value of lawsuits from not hiring.
3. Do Not Embarrass the Employee
Just a few days before, this was a trusted employee to whom you talked about all sorts of topics, from family events to the Super Bowl. Do not embarrass the employee by firing him or her in front of others, especially strangers, or in an impersonal manner (by e-mail or text).
One large national retailer faced a lawsuit after it accused an employee of stealing and had him led out of the store in handcuffs in front of all of his peers. The former employee committed suicide 3 days later.
Also, think of termination from the employee’s view. How will he or she face his or her family or former coworkers? Think of embarrassing items that may occur during a termination meeting and what can be done to reduce that embarrassment. The more answers to these questions you can have ready before termination, the more anger and shame you may have mitigated in this individual and the less risk of employee lawsuits and workplace violence.
4. Keep It Short and Calm
You have made the decision, so keep the meeting brief. Tell the employee you appreciate all the good things he or she did, and give a short reason for termination. But, once you give the reason, do not start defending it. If the employee rants and raves, calmly tell him or her that you understand how he or she feels and that you really do not enjoy doing this, but the decision is final.
Though most states are at-will states, and you do not have to a give a reason for termination, telling the employee a truthful reason limits the guessing that leads to discrimination claims and can go a long way if you plan on fighting an unemployment claim.
5. Have a Plan Regarding Severance or Benefits
If the meeting ends with “I am sure someone from HR will be contacting you soon,” you have given the employee plenty to worry about. It is better to say, “You will receive 4 weeks of severance, and we will pay your insurance until the end of the month,” so the employee can make a plan and can turn his or her mind away from the pain of the termination. If there are nonmonetary terms, such outplacement services, have everything ready to give to the employee. Your goal is to make this as easy as you can for the employee, and you want him or her to succeed somewhere else quickly.
Termination is not easy, but given the fact that so many calls are made and lawsuits have been started because of how the termination was handled, employers should carefully plan what is said and who says it. Less is more. The calmer the meeting, the fewer the people, and the more respect given to the employee, the more employers can lessen the chance that the employee becomes a former disgruntled employee, which can reduce the chances of employment claims and workplace violence.
So, following the above steps can reduce the risk of employment lawsuits and workplace violence. Remember, the life you save may very well be your own.
Join Silverman, as he presents, “Termination Protocol: Pre- and Post-Discharge Action Plans for Minimizing Risks of Violence,” at Workplace Violence Prevention Symposium 2017, on Thursday, March 2, 2017. Click here for more information.
| Stuart Silverman has been practicing law for almost 30 years and is the principal of the Law Offices of Stuart M. Silverman, P.A., located in Boca Raton, Florida. The emphasis of his practice is in the area of labor and employment law and business and commercial litigation. Silverman focuses on helping businesses by taking a proactive approach to their employment and business law needs, and he provides assistance with compliance on workforce issues, employment handbooks and policies, employee contracts, noncompetition and nonsolicitation agreements, partnership agreements, shareholder agreements, contracts and buyouts, severance issues, and commercial leases.
Silverman is also a member of The Workplace Violence Prevention Institute, a group formed to investigate solutions and strategies from a proactive and systemic perspective to minimize the risk of workplace violence, specifically violence caused by employees or former employees. Silverman can be reached at smslawfirm@aol.com. |