Terminations are no picnic for anyone, but since they are
the genesis of many lawsuits, it’s worth learning how to do them right.
Handling them carefully can save cash, calm frayed nerves, and maintain morale
and productivity. (As long as you don’t commit one of these 10 sins.)
Sin #1. Terminating
Rashly in a Fit of Anger
Boss: That’s the last straw, you’re out of here—and I mean
now!
There are at least three things wrong with an on-the-spot
termination:
·
People don’t make good decisions this way.
·
There are many factors to considered before
terminating.
·
Being disrespectful encourages people to sue.
Bottom line, wait until you talk to HR.
Sin #2. Terminating
in Public, Especially in a Humiliating Way
Boss: [in front of many employees] Johnny, you’re a little
too slow and a little too lazy to stay in this job. I’m making an example of
you—you’re fired.
Public humiliation is a lawsuit magnet. There’s no good
reason to treat people this way, and a host of reasons to avoid it. Another
similar problem is the “perp walk,” that is, very publicly marching someone to
the door carrying a box of belongings with a security escort.
Sin #3. Terminating
Without Checking with HR
Boss: HR’s going to take forever on this—I want this nut job
gone today.
Boss: Your last day is today—I’ll talk to HR to manage the
administrative details.
HR needs to be able to evaluate a number of factors before
there is any termination:
·
Consistency. Have other similarly-situated
employees been fired? If not, there’s a lawsuit brewing.
·
Appropriateness. Is this a significant enough
infraction that termination is reasonable?
·
Contract. Is there a contract or agreement that
terminating would violate? Or maybe an implied contract of good faith and fair
dealing?
·
Special circumstance. Perhaps the whole
department is going to be let go, or maybe there’s some situation of which the
manager is not aware, for example, a complaint filed.
Sin #4. Termination
that Looks Like Retaliation
Boss: I don’t care if you just filed a suit, you’re fired.
Boss: You think you can complain about me to management and
keep this job?
Boss: Well, you are fired for your performance, and I’ll
just add that you’re not much of a team player, having complained to my boss
and then gone to the government agencies.
Whenever a termination closely follows a protected act,
there will be an obvious suggestion of retaliation. That’s a tough one to
defend, unless there is very strong documentation. It’s best to do a thorough
evaluation in these situations. Frustrating as it is, people who file
complaints do have, at least to some extent, an “umbrella of protection” over
them.
What’s “closely follows”? Of course, it’s a grey area, but
most experts agree that “weeks” is close and “months” not so close. However, if
there is any other evidence linking the two acts, all bets are off, no matter
how great the time difference.
Sin #5. Offering a
False Basis for a Termination
Boss: I’m very sorry to tell you this, John, but we have
severe budget cuts and I have to let you go. [Thinking: The budget cuts aren’t
all that severe, but I don’t want to tell him his performance was poor—it’s bad
enough he gets fired.]
Managers often want to soften the blow of a termination by
blaming it on “budget cuts,” or “department reorganizations,” or “the company
is going in a different direction.”
The problem comes when you rehire, and the former employee
finds out about it. He or she will assume that since the given reason was
false, the termination was because of discrimination or retaliation. The jury
needs to ponder, Was the manager lying then, or is the manager lying now?
Either way, the manager’s a liar.
Sin #6. Terminating
Without a Reason on the Basis of “At-Will”
Boss: I don’t have to give you any reason why I’m firing
you–you’re “at will.”
It’s true that unless there’s a formal contract of some
kind, most employees are employees at will, and that means they can be
terminated at any time for any reason or for no reason. And the flip side is
that they can leave at any time.
But here’s a news flash—people don’t like to be fired, and
they’re not going to blame themselves. They typically have no reason to think
their performance is subpar; so the reason must be because of their protected
status—that is, their race, sex, age, or disability. Now your company is in trouble;
you have to begin your defense by proving that, yes, your managers are so
stupid that they fire employees for no reason. And then you have to explain why
“no reason” is more likely than the illegal reason. It’s not going to go well.
Sin #7. Terminating
Without Proper Documentation
Boss: Documentation, schmockumentation; this guy’s a poor
performer and I want him gone today.
The trouble with this scenario—terminating with no backup
evidence of poor performance—is that there is usually documentation that shows
good performance. Typically, since the person hasn’t been terminated before,
his or her performance reviews read “good” or “satisfactory.”
Now, this is like the “offering a false reason” problem—you
are essentially saying to the jury, “Trust me when I say that I lied on the
performance reviews.”
Sin #8. Not giving
the employee a chance to explain
Boss: You’re fired—that’s the third time you’re late.
Employee: I know I was late, but …
Boss [interrupting]: It doesn’t matter why; the time for
excuses is gone—you’re out of here
REPLAY
Boss: You’re fired—that’s the third time you’re late.
Employee: I know I was late, but I just found out my
4-year-old daughter has bone cancer and I had to …
True, there’s no legal requirement to give employees a
chance to explain, but juries will view it as a basic element of fairness. In a
situation like the one in the scenario, the jury’s sympathies are not going to
be with the manager.
Here’s another scenario. A young woman transferred into a
new position at her company. She was late the first few mornings and the new
boss wanted to fire her. HR suggested he talk to the employee. Come to find
out, she was actually coming in an hour early to train her replacement at her
old job and then rushing to the new one.
Sin #9. Terminating
on Your Own
Boss: I don’t need to check with anyone—it’s a termination
offense and that’s it.
It’s generally better to have a group involved in deciding
on a termination, for a number of reasons:
·
There may be other people on the team (like the
HR manager) in a better position to judge the appropriateness of the
termination.
·
A group decision shows that careful
consideration was given to the matter.
·
Since litigation can go on for years, and since
managers can come and go, it’s in the organization’s best interest to have
several managers familiar with the case.
Sin #10. Terminating
Without Preparation
Boss: I don’t care about checklists and benefits, I want
this person gone, now.
Boss: [floundering] Well, I guess we need to talk … ah …
well, it’s like this … ah … you see … sometimes we wish …ah…
Let’s face it, terminations prompt many lawsuits, and
experience suggests that the decision of whether to sue is often influenced by
how the person was treated during the termination. So take the time to be
prepared. Know what you are going to say. This enables whoever is handling the
termination to better control the conversation and keep it from becoming too
long, too emotional, or unclear in delivery and message. Also determine who is
going to do what, what documents need to be available, what procedures need to
be followed, what references will be given, final pay, and so on.
Source: HR
Daily Adviser
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