Tackling the Intimidation of Termination

For anyone who has supervised employees for a time, you may have come to that moment in time where you decided an employee has to go.  For most, it’s an uncomfortable experience.  Often times, these employees stay much longer than they should, due to procrastination or a hope that they’ll turn around soon.  So, when is the right time and how do you conduct a termination?  Is there a “best practice”?

First, let’s understand the different categories of terminations.  We’ll look at each and discuss how best to process each.

  1. At Will: The “at will” doctrine holds that the employment relationship is “at will”, meaning either the employer or the employee can end it at any time for any reason.  In my experience, no employee was ever let go for no reason at all.  However, “at will” is often a “shield” so to speak, when there’s a decision to let someone go, from any type of wrongdoing on the employer’s part.    So, for instance, you don’t feel that an employee is a good fit, you can avoid any drama or contest by exercising your “at will” right.  You can let someone go for any reason except for one that’s deemed unlawful.

My advice:  It is advisable to include “at will” terminology in your handbook, your offer letters, in your open door policy, and in a disciplinary process.

  1. Lay Offs: In a layoff situation, a position is eliminated.  Layoffs are most often the result of a downturn in business or a restructuring of some sort.  One of the greatest challenges when planning a layoff is what and when to tell employees.  If you give advance warning, you may lose the employees that you wish to retain.  When rumors start, they spread like wildfire, so management must have a plan and manage the situation well.

What the law says: The California WARN act requires companies that have a facility with 75 or more employees (including contractors) within a 12 month time period, who plan on laying off 50 or more employees for more than 30 days or relocating more than 100 miles to give 60 days notice to certain authorities and employees.

In these situations, employees would most likely be eligible for unemployment insurance benefits (other conditions must be met on the employee’s part).  A company may want to consider alternative options, such as job sharing, reduction in hours, voluntary leave or early retirement.  Nonetheless, employees shouldn’t be completely surprised when learning that their job is being eliminated.

What needs to be planned:

  1. Timing: Some employees may be let go at varying times, depending on company needs.
  2. Salary and benefits continuation
  3. Severance agreements that include a waiver of the employee’s right to sue for discriminatory reasons.
  4. Also, as a due diligence, an analysis of the workforce transition should be completed to assess the impact on the numbers of employees in protected categories, such as age, ethnicity, gender, etc. to avoid unintended discrimination.

Outplacement services are a great benefit for those employees losing jobs:  they have an immediate resource to aid in the search for a new job.  The organization may want to consider bringing in counselors for both the employees leaving and staying, as layoffs usually result in grieving.   Also, having contacted hiring employers ahead of time is a great idea and handing employees a list of potential openings helps curb the initial emotions.

Just as much planning should go into the management of the employees retained…what the plan moving forward is, how their positions may change, what differing responsibilities they may have, what the new expectations are.  These employees will look for some sign of job stability.  It should be anticipated and expected that these employees may be searching for new jobs.

  1. Termination for Cause: Never, never, should an employee be surprised if the termination is for cause.  There should be clear policies that specify behavioral expectations and that in grievous situations, termination may be immediate (e.g. violence).  Should the situation be an employee’s performance, specifically lack thereof, it is recommended and hoped that the manager and employee engage in a performance remediation process.  Nipping poor performance in the bud saves time, energy, emotions, loss of productivity and hopefully the agony of termination.  But the process does take a considerable amount of energy.

By communicating performance expectations ahead of time, the employee may not even find themselves in this situation in the first place.  However, when it does happen, pointing out the gap between expected performance and actual performance is essential.

Some best practices: The manager should study the situation and assure that all factors outside of the employee’s control are corrected, such as improper tools, lack of training, etc.  When it has been decidedly determined that the employee’s performance needs improvement, the employee and manager should:

  1. Construct a plan,
  2. Give adequate feedback, and
  3. Agree on what the consequences of further poor performance is.

When all have given a good faith effort, and the termination is inevitable, the employee should understand that termination is the consequence.

It is vital to document the steps taken from the get go …documentation will support your actions should you find yourself the recipient of a complaint or lawsuit.  What you want to avoid in a termination discussion is a debate…if the consequence of continued poor performance is termination, then that should have been made clear ahead of time.  In essence, you are helping the employee be successful, by separating them from a job that’s proven to be an unsuccessful relationship.

  1. Constructive Discharge: This term refers to a situation where the employer has made the conditions of employment so difficult that the employee is forced to resign.    An example of constructive discharge is an employee who is sexually harassed on a frequent basis, has told the offender to stop, has gone to his/her manager and complained, yet the harassment continues.  This is a work situation so intolerable, that a reasonable person would leave.  Another example is an employee who files a worker’s compensation claim and when he/she returns has had their workspace moved to a dim, cold space, more like a closet, in the basement with the files on another floor.  Employers should understand that they face the same risks as a termination, such as lawsuits for discrimination and retaliation, and that the employee will most likely be eligible to receive unemployment benefits.

Some issues to consider:

  1. Always, always treat a departing employee with dignity, respect and empathy. Maintain composure even if the employee does not.  Besides being the right and exemplary thing to do, it minimizes the risk of the employee becoming any kind of a threat.  Meet with the employee in a private area and assure confidentiality to the maximum extent possible.  Have a box and tissues on hand.  Timing is something else to consider; if you terminate first thing in the morning, you may be liable for show-up pay.
  2. Should you allow employees to bid farewell to their fellow workers? Use discretion, particularly when terminating someone for cause.  If you do, let them know that you expect professional conduct.  Also, if you are using a severance agreement, you may indicate that a condition is non-disclosure of the nature of the termination…remind the employee of the expectation.
  3. Another issue to consider is security. Assess whether the employee may be any kind of a threat to the manager, other employees, company property, etc. as part of the planning process.  Alert security or management and have a process.  Hire professionals if needed.  In light of some of the unfortunate workplace fatalities committed by disgruntled employees, the risk must be considered and others protected.  You may also want to escort the employee out of the building.
  4. If an employee requests a letter of reference, take care to give a proper response. If you give a poor performer a glowing reference, it can be used against you in the event of a complaint or lawsuit.  Also, think about an employer’s duty to conduct a background investigation.  Why would you compromise the outcome for another employer, when you must do the same?  It’s not fair to the next employer, nor to the employee to pass along an unresolved problem.  Conversely, be careful when disclosing information on poor performance and making blanket derogatory statements, as they can lead to a slander case.  This is the proverbial “between a rock and a hard place”.  Manage these situations with care and diplomacy.
  5. Make sure that you plan the termination well and have everything in order. Not having answers, proper documents or clarity can make the experience drag out and become unpleasant for all.  Check the attached checklist for all of the details you should cover before you proceed.

No one enjoys telling someone that they lost their job.  However, at times it is the right thing to do.  Assure that you have been fair.  Carefully plan ahead, use respect and be prepared ahead of time for any reaction.

Hopefully, these suggestions will help you get through the termination experience as painlessly as possible.