Employment attorneys are frequently left to clean up the mess after a difficult termination. But engaging with your employees in a professional and respectful manner can go a long way toward simplifying termination cases. The following article provides some hard-won advice on the do’s and don’ts of employee terminations.
Fairness Counts
Generally speaking, there’s nothing in employment law that requires a termination to be fair. As our parents often tell us as children: Life isn’t fair, so you’d better get used to it. However, most adults have internalized a sense of fair play that we learned as small children. And when a situation is unfair, we feel there should be some accounting for it. Conversely, research indicates that if an individual feels that he has been treated with kindness, respect, and honesty, he is less likely to file a civil lawsuit. As a result, you should place a premium on good communication and fairness in your terminations.
There are exceptions to every rule. But, in general, a good termination should be foreseeable. If the termination is the result of ongoing performance problems, there should be a history of meetings and written documentation of the problems. No employee should find out that her performance is unsatisfactory for the first time at a termination meeting.
Problems often arise when a manager attempts to soften the blow of negative feedback. Giving unpleasant news is part of being a manager—it’s one of the reasons you’re paid more than the people who work for you. It can be extremely uncomfortable, especially for those of us who are people pleasers, but it must be done. So, when it comes time for performance evaluations, carefully consider the employee’s performance during the days, weeks, or months that have passed since her last evaluation, and be honest. Provide specific examples, and play fair: Don’t cite issues that occurred outside the evaluation period unless they relate to an ongoing pattern that has continued into the evaluation period.
If an employee is terminated on the basis of a single egregious incident, his conduct should actually be extreme. Engaging in workplace violence or threats of violence, drug or alcohol abuse, theft, or other criminal activity is a good reason to fire an employee on the spot. Minor infractions are not. When minor infractions follow a series of unaddressed performance problems, they are frequently the straw that breaks the camel’s back. However, you need to recognize the situation for what it is: a failure by management to address ongoing issues. An employee’s single intemperate statement generally isn’t a good reason for termination if the real issue is years of poor work product.
New Technology Has No Place in Terminations
Once you’ve established the grounds for the termination, carry it out in a respectful manner. The number of disciplinary communications that occur by text message is enough to give most employment attorneys heart palpitations. A lawsuit filed in New York reflects this trend. In the case, a judge stands accused of terminating his law clerk via text message while she was on maternity leave. The case is unresolved, so we have relatively few details. However, it illustrates a key point: Text messages have no place in terminations.
For many employees, a termination occurs once in a career, but it feels like an indictment of their entire work history: You’re not good enough! Because a termination is monumental for the employee, it should be equally important for the employer. Even if electronic communications are standard fare in your workplace, you shouldn’t use them for disciplinary action or terminations.
Whenever possible, notice of a termination should be given in a face-to-face meeting and followed up with a written letter. Ideally, you’ll give a copy of the letter to the employee at the termination meeting, so the process isn’t unnecessarily prolonged. When face-to-face meetings are impossible, you should communicate with the employee by telephone or letter. E-mails, text messages, and social media should be strictly off-limits, except in extraordinary circumstances.
Bottom Line
As society moves away from the traditional strictures of the workplace, there are certain areas in which decorum remains important. A casual dress code is all well and good. Terminations, on the other hand, should be treated as the serious matter they are. Be sure to take the necessary steps to lay the foundation for a termination through careful documentation and honest communication with the employee. An employee who feels that he has been treated fairly—even if he doesn’t like the outcome—is much less likely to sue your business.
When it’s time to communicate the termination decision, do it face-to-face. Text messages are a casual form of communication and don’t fit the gravity of the situation. Employees may feel especially blindsided if a termination text comes through in the evening or over the weekend, when their guard is down and they’re not expecting bad news.
In short, nothing can stop an employee from suing your company if he’s determined. But most lawsuits are brought by reasonable people who feel they’ve been treated unfairly. You can dodge litigation over a termination decision if you handle the situation carefully. Avoiding conflict and your own discomfort isn’t worth the cost of litigation!
Lauren E. M. Russell is an employment law attorney with Young Conaway Stargatt & Taylor, LLP, practicing in the firm’s Wilmington, Delaware, office. She is a member of the Employers Counsel Network as well as Editor of and frequent contributor to Delaware Employment Law Letter. She may be contacted at lrussell@ycst.com.