Terminating or firing employees is a part of owning or operating a business.  It is unavoidable and inevitable.  Yet, it is still probably the single-most unpleasant aspect of being a business owner, supervisor, or 
manager.  

Of course, there are a number of approaches an owner, manager, or supervisor should take PRIOR to terminating an employee.  This blog entry is not covering progressive discipline or progressive corrective action.  Rather, this blog entry is covering those circumstances where the conduct was so abhorrent or the progressive discipline has been thoroughly exhausted, that termination becomes necessary.

Just because it is necessary, does not mean that it give the owner, manager, or supervisor carte blanche as to how it is undertaken.  Rather, it should be performed in the most ethical, and professional manner possible. Following the proper protocol in conducting the termination not only softens the blow to the terminated employee (who is very often surprised that they are being terminated), protects the business from potential litigation arising from the termination, and oftentimes reassures the owner or manager that they did the right thing.

So, in order to ensure a termination is handled appropriately, employers, owners, managers, and supervisors should abide by the following steps when carrying it out:

Hold the meeting in a private office or conference room. This will protect confidentiality and keep interruptions to a minimum.

Give careful consideration to who attends the meeting. Two persons representing the employer should attend the termination meeting. This provides the employer with two witnesses to the meeting dialogue and conduct. But the selection of these individuals can vary. A human resources representative and manager are usually appropriate. The employee's supervisor may not be optimal if there is too much conflict between the supervisor and the employee.

Prepare for the meeting. Anticipate that the meeting will be awkward and most likely upsetting for the employee. In order to make the process as smooth as possible, rehearse what you will say to the employee. Try to anticipate questions that the employee may ask and think about how you intend to answer those questions. A review of the employee's personnel file or other documentation may also be necessary to prepare for the meeting. Some suggestions:

  • Greet the person at the door and invite the person to have a seat.
  • ntroduce the other person attending the meeting.
  • Explain the circumstances that are causing this particular meeting.

Treat the employee with dignity and respect. There is no need to be unprofessional or mean-spirited towards an employee who is being terminated. There is no need to gloat. This type of behavior only fosters ill feelings and gives the employee motivation to seek revenge. However, do not apologize or say you are sorry for the termination decision.

Verbally and clearly state that your organization is terminating the employee’s employment. Two common mistakes at this stage are when the person conducting the termination (1) is vague to the point the employee does not know he or she has been terminated and (2) talks too much. Silence can make interpersonal situations uncomfortable, and in an effort to fill this silence, the people like to say more than what should be said to fill the void. So, clearly explain the termination and then commit to a short, respectful pause/silence for a moment.

Address the reason for the termination. An employer should then briefly and firmly state the reason for the decision. For example, explain that the organization is experiencing financial difficulties and anticipates that this problem will exacerbate in the months ahead. After exploring all other means to close the gap, it reached the point where a reduction in staff was needed and is appropriate.

When stating the reason, an employer must be careful not to embellish; the reason given must be true and accurate. Truth and accuracy are important in order to avoid a defamation cause of action based on the "self-publication doctrine," whereby the employee may sue a former employer claiming the employee was forced to publish the false reason for the termination to potential future employers. (McKinney v. County of Santa Clara, (1980) 100 Cal. App. 3d 787.)

Give the employee benefits information, a final paycheck and expense reimbursement forms. An employer must inform the terminated employee of his or her right to continue benefits that may apply, including pension, job search assistance, and severance, and COBRA benefits. (Consolidated Omnibus Budget Reconciliation Act of 1985, 20 U.S.C. §§ 1161-1168.) California Labor Code § 201 requires the employer to pay to the employee at the time of termination any unpaid wages and vacation time. An employer that violates California Labor Code § 201 may be subject to penalties. Also, provide the employee with any forms he or she will need in order to be reimbursed for business expenses.

Collect employer property, employer materials, and terminate voicemail and computer access. An employer should collect any keys, security pass cards, cell phones, computers, documents or other company materials in the employee's possession or make clear arrangements for this to be done. Remind the employee not to take any company information with him or her. Additionally, when the termination is effective, the employer will want to make sure the employee's voicemail and computer (including e-mail) access rights are terminated.

Remind the employee of confidentiality or non-solicitation agreements. If the employee has entered into any such agreements, provide the employee with a copy of the agreement.

If seeking resignation or offering a separation or severance agreement, slow it down. If seeking the employees’ volunteered resignation in exchange for a separation or severance agreement, remember to slow it down. The employee has just been informed that they are being terminated and they may need a moment to digest.

Explain the terms of the separation agreement. If a separation agreement is going to be proposed, give the employee a copy of a separation agreement and briefly explain its purpose. Give the employee time to consider the agreement; do not require that he or she sign the agreement during the meeting or by the end of the day. In fact, if the employee is 40 years of age or older, the Older Workers Benefits Protection Act (OWBPA), which amended the ADEA, has specific timing requirements for the employee's consideration of the separation agreement (i.e. 45 days to consider, if part of a class of employees being terminated; 21 days to consider for other kinds of separations; 7 days after acceptance to revoke).

Give the employee an opportunity to respond, ask questions, or just absorb the news. Even a couple of seconds will seem like an eternity, let alone a sufficiently long pause, yet it is important to give the employee time to formulate their thoughts and questions. You may want to encourage the employee to speak by asking a question such as: "I am sure you have a lot on your mind, but are there any questions you feel you want to share or discuss with me at this time?" If the employee does not immediately answer, the person conducting the termination should resist the temptation to jump to another subject.

The employee should be listened to in an empathic manner and thanked for sharing his or her perspective, and once again thanked for the qualities and positive contributions brought to the organization. The sincerity, or lack of sincerity of these comments, will be easily felt by the terminated employee.

If the employee asks a question to which you do not have an answer, explain that the employee can pose the question to Human Resources. This would be done via telephone call after the employee has left the building.

Permit the employee to gather personal items or offer to ship. An effective way to transition to the close of the meeting is to offer to the former employee an opportunity to collect their items before leaving. Alternatively, to offer to let the employee depart immediately, and that someone from the organization would gather their personal items and ship them to the employee. If permitting the employee to gather, make sure that a staff member oversees the gathering and escorts the individual out of the building.

End of the meeting. Before concluding the interview, the person conducting should offer words of encouragement and confidence in the future of the affected employee. When it is time to indicate the interview is over, the person conducting can stand and extend his or her hand, and remain standing until the former employee has left the office.

Once the employee departs, draft an email or memo explaining the termination and send to Human Resources. It does not need to be long. Just a short, descriptive email or memo that narrates the termination, what explanation was provided, how the employee reacted, what was collected, and what was offered (e.g. severance agreement). This document is useful because it would contain the date, time, witnesses to the termination, and a contemporaneous account of the termination. In case there is ever a dispute as to what occurred at the time of termination, this document can be used in defense.

Minimize discussion of the termination with other employees. Any notice given to remaining employees should be brief and in general terms (i.e., "the employee has left the company"). Avoid any descriptive and unnecessary communications regarding the termination.  However, if the termination is of a prominent employee or supervisor, consider having a meeting with affected employees.

If you follow the above best practices, you will minimize your risk.  That is not to say you will eliminate it – no, anyone can sue anyone for anything at anytime – but you will have effectively closed many doors potential litigants would otherwise have open to pursue their suit.  That said, if you feel the circumstances of the employee, the nature of the business, or the business's past history put you at a higher risk of potential litgation, then at least consulting with an employment attorney to walk you through the above – or to apply the above to your specific situation – maybe a good investment in your time.

Categories: Uncategorized