12 Tips for Handling Employee Terminations and Disciplinary Actions

No one looks forward to disciplining or firing employees, but most HR professionals must deal with these sensitive matters from time to time—while also ensuring that the business complies with a host of employment laws. Here are some tips for handling disciplinary matters without giving rise to a lawsuit.

There's been an absolute explosion in the number of workplace laws in recent years, said James Reidy, an attorney with Sheehan Phinney in Manchester, N.H. Before 1990 many of the laws HR professionals work with today didn't exist. For example, the Americans with Disabilities Act took effect in 1992, and the Family and Medical Leave Act was signed in 1993. And agency regulations can be even more daunting than laws.

"When was the last time you felt completely worry-free when disciplining or terminating an employee?" Reidy asked attendees at the 2018 Society for Human Resource Management Employment Law & Legislative Conference on March 13 in Washington, D.C.

Unfortunately, there's almost always an errant text, e-mail or document—or a supervisor's comment—that's going to stand out in court, he said.

[SHRM members-only how-to guide: How to Establish a Performance Improvement Plan]

Each disciplinary and discharge situation is unique and increasingly more complicated, but HR can help things run smoothly by handling situations in an organized and consistent way. Reidy recommended the following best practices:

1. Confirm the information. When someone comes to you about a worker's misconduct, attendance issues or performance problems, be sure to confirm the source of the information and verify the facts.
   
2. Check the policy. If an employee is being disciplined for violating a company policy, make sure everyone involved knows what the actual policy says. Also make sure that the employee had a copy of the policy. Of course, employees should know the more obvious rules without reading a policy—it should go without saying that sleeping on the job, for example, isn't allowed.
   
3. Review past practices. Make sure consistent procedures are followed. Does the business have a progressive discipline process through which employees first receive a verbal warning, then a written warning and so on? Are there certain circumstances that are grounds for immediate termination?
   
4. Remove emotion from the decision-making process. If emotions are running high, talk it out with someone first. "Take it down a notch, and be reasonable, because you say things in anger that you wouldn't necessarily otherwise say and you're also not thinking clearly," Reidy said.
   
5. Arrange for a witness. It is best to avoid having the conversation alone. When a witness is present, the conversation can later be verified if there's a disagreement.
   
6. Have a plan. Before the meeting, decide who is going to speak and what will be said. For unionized workplaces, confirm whether an employee's representative needs to be informed about or present for the meeting.
   
7. Prepare documents in advance. If the employee needs to sign anything regarding a disciplinary action, performance improvement plan or termination, be sure that everything is ready prior to the meeting.
   
8. Meet in person if possible. Firing someone by text, voice mail or e-mail is probably not the best thing to do, because it adds insult to an already emotional situation, Reidy said.
   
9. Have the meeting in a private location. Make sure there won't be any awkward or distracting interruptions during a difficult conversation.
   
10. Give the real reasons. Outline the issues in advance and tell the employee the truth. In the case of a termination, don't say "Business is slow" or "We're having a layoff" if the real reason is related to performance.
    
11. Let the employee talk. This shows fairness. An employee might say, "You're right, this wasn't the right job for me." Or the employee may take that time to share his or her point of view. But be sure to keep control of the conversation and don't let it go on too long.
    
12. Don't be stubborn. If something comes to light during a termination meeting that may have changed the decision if it had been known in advance, be prepared to suspend the employee (or take other temporary action) until a more thorough investigation can be completed.  
    

When handling disciplinary actions, HR staff must always keep safety in mind, said Mark Fogel, SHRM-SCP, chief executive officer and co-founder of Human Capital 3.0 (an organizational leadership advisory firm), in an earlier conference session. "You have to hear all sides to a situation, but you may need to send people home to cool off in a heated situation," he said. The formal meeting can happen later.

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