Right and Wrong Ways to Terminate

When it comes to poor-performing employees—even those who’ve been put on notice, given an improvement plan and had plenty of time to turn around—some managers are reluctant to show them the door.

It may be because a supervisor is too lenient, is afraid of being sued or doesn’t like giving up on employees, especially if someone’s having a rough time at home or has been with the company for years.

But sometimes, workplace experts said, the reason is that managers just don’t know how.

Good managers need to think at least six months in advance before terminating a worker, said the experts, who add that they, too, often watch supervisors make mistakes during firings, which can lead to unnecessary ill will, a tarnished reputation or expensive lawsuits.

Eric Meyer, a partner in Philadelphia-based Dilworth Paxson LLP’s labor and employment group, said one of the biggest mistakes employers make is failing to properly document the reason for a disciplinary termination. HR managers and the employee’s supervisor should carefully measure the individual’s poor performance or noncompliance against company policies long before the termination discussion.

“Employers should review the employee’s file, make sure the reason for the termination holds water and make sure the termination decision is consistent with the company’s practices and policies,” Meyer advised.

To avoid negative repercussions such as wrongful-termination lawsuits, companies should have written procedures for firing employees, said Rob Wilson, CEO of Employco USA, a human resource outsourcing company based in Westmont, Ill. During the termination meeting with the employee, it’s important to present all documents about job performance, such as work reviews and written warnings, he stressed.

“Be sure to explain clearly, yet courteously, as to the grounds for termination, avoiding debate on the issue,” Wilson said. “Handle the termination with a human element, treating them as a person and not a number, and be sure to keep the termination confidential, to maintain the former employee’s privacy.”

Even companies that operate in states that allow them to fire workers “at will”—that is, with or without cause or notice—should still articulate a business reason, according to April Boyer, partner in K&L Gates’ labor, employment and workplace safetypractice. This step can help protect an employer should a worker file a lawsuit claiming his firing was illegal.

Meyer said it’s also important to have a witness present.

“Two people should do the termination,” he said. “One person should take notes of what is said. If there is litigation, this will avoid a dispute about what was said.”

Other mistakes, he noted, include categorizing a disciplinary termination as a mere “layoff” and deviating from disciplinary policy by creating exceptions for certain employees.

Boyer, too, has seen HR managers make plenty of mistakes when firing people. They include:

Not considering protected characteristics. “Be certain that the employee’s age, marital status, race, gender, pregnancy status, request for FMLA leave, sexual orientation, disability, religion, national origin or other protected activities—such as whistle-blowing acts or complaints of discrimination or harassment—are not considered in the decision to discharge the employee,” Boyer said.

Communicating the decision inaccurately. “Be honest,” she said. “Be concise. Do not talk too much. Do not argue. Do not apologize. Do not soften the message. If there is litigation, this will avoid a conflict between the company’s reason for terminating the employee and what was communicated to the employee. Let the employee express himself or herself at the end of your comments.” Moreover, if someone is let go for performance reasons, don’t send other workers an e-mail praising the employee's dedication and hard work and reporting that the employee resigned, Boyer stressed.

Failing to consult with an attorney ahead of time. “The legal fees incurred to consult with an attorney before terminating an employee are minor compared to the cost of litigating a termination that is not handled properly,” Boyer warned.

Failing to retrieve company property.

Also important, Wilson said, is helping terminated employees move forward by offering the following:

Outplacement services: These services help people write resumes, hone their interview skills and learn to network.

Financial transition planning: Fired employees can benefit from advice on finding a new job that pays enough to cover their bills. This type of service can also assist with 401(k) and other retirement planning.

Upfront compensation: At the time of termination, provide the employee’s accrued salary to him or her in person, with a paper check. At the same time, financially compensate the person for remaining vacation days or paid-time-off days.

Dana Wilkie is an online editor/manager for SHRM.