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What to Say When Firing an Employee
The following dialogue provides an excerpt from a firing that involves an employee who had sincerely tried to do his job but just hadn’t been able to perform at a satisfactory level.
Note how the manager shows patience and expresses sympathy but does not offer false praise or waver in his decision. In this excerpt, one manager is handling the termination procedure.
Have Another Manager Present When Firing Someone
It is good practice, however, to have another manager present. Ideally, the second manager should not be someone the employee reported to either directly or indirectly. If the firing does not go smoothly, the second manager can be called upon as a witness should any legal action ensue at some later point.
What to Say:
Manager: Tom, please have a seat.
Tom: Thank you.
Manager: Tom, I know that you have tried hard to succeed at your job. Nonetheless, for some months now, your overall performance has not been satisfactory. There are too many instances of errors in the accounts payable reports and your attempts to carefully check over each report have slowed down the pace of your work considerably. We cannot retain you in this position and we must let you go.
Tom: You mean, I’m fired?
Manager: Yes, we are going to have to let you go. I am very sorry that this did not work out.
Tom: I know I can do the job. Give me another chance. I really like working here.
Manager: Tom, we have given you at least two written warnings and several verbal warnings.
Tom: But my supervisor says the quality of my work is improving.
Manager: Although the number of errors has decreased, the quality is still not satisfactory. And in working to decrease the amount of errors, your work pace has become unsatisfactory. I know you have tried . . . but it’s still not working out.
Tom: What about another position? I’ve never really liked payables. How about the entry-level position in accounts receivable? I’ll really give it my all.
Manager: Tom, it’s time to move on. We all like you here. This is a difficult decision for all of us. But the decision has been made. We have given this decision a lot of thought. We know it is difficult for you. And we did not make this decision lightly.
Tom: I don’t think this is fair. I think I should get another chance.
Manager: Tom, I sympathize with your feelings. But we have given the situation a lot of thought. It was not an easy decision to make. We regret to tell you that this is our final decision. We will miss you here, Tom. We truly wish you the best.
Firing an employee–looking someone straight in the eye and telling them they no longer have a source of income–is one of the toughest things you’ll ever have to do as a business owner. It’s often as hard on the person giving the bad news as it is on the person receiving it. And yet it still needs to be done, especially if you have someone who’s “poisoning the well” and bringing the entire business down with them.
Assuming this person is an “at will” employee–someone who doesn’t have an employment contract that guarantees employment for a specified time period–here are ten tips to help you remove the bad apple cancer from your business with a “zero to low” risk of being sued for wrongful termination.
1. Check your past feedback. If you’ve been giving this employee glowing performance reviews and a raise each year, they’ll understandably be shocked when you call them into your office and give them the boot. Look back at your relationship with this employee, and if you’ve been sending them overly positive signals, don’t fire the employee immediately! Instead, start changing the signals and let them know in no uncertain terms that they’re not “living in Kansas anymore.”
2. Give them a warning. Sit the employee down in your office, explain that you’re unhappy with their performance, and give them a limited period of time (I would suggest 30 days) to turn things around. Make it very clear that if they continue to “fill in the blank with their bad behavior,” you’ll have no choice but to terminate them immediately. Prepare a “memo to the file” detailing what you told the employee.
3. Focus on specific behavior goals. Give the employee a list of behaviors you find unacceptable, and tell them exactly what they needs to do to get back into your good graces. Do not allow the employee to drag you into a discussion that focuses on anything other that what you’ve just covered.
4. Fire early in the week and never on a Friday. Assuming the employee doesn’t turn things around for the better, fire them early in the work week. Never fire someone on a Friday, because then they can “stew about it” over the weekend and come into work the following Monday ready for a fight, or even worse.
5. Make it short, sweet and to the point. Do not get caught up in the employee’s emotions–have a box of Kleenex handy on your desk. Have a witness present during the meeting in case the employee threatens retaliation. Then proceed with the following steps:
- Tell the employee that they’re being terminated and when they’ll be expected to leave the office.
- Explain that the firing is “for cause,” but avoid going into detail about the grounds for termination. You don’t want to start an argument. Just point out that the employee did not attain the goals you wanted them to reach in their latest “performance review.” If the employee objects or becomes defensive, say simply “I’m sorry, but my mind is made up.”
- Explain how much severance pay (if any) you’ll be providing and what other benefits they’ll be entitled to after they leave your employment.
- Explain to them what you’ll say should anyone call and ask you for a job reference. Be sure you’ve spoken with an employment law attorney first and have agreed on the exact wording.
6. Do not let the employee linger. Unless there’s an urgent reason to keep the employee around for a few days, tell them that they’re to leave the business premises immediately, after a short stop at their desk to pick up any personal items. Escort the employee to the door, so the employee doesn’t have the chance to steal any company files, trash any computer data or change any computer passwords without your knowledge. Better yet, have another employee change these while the other employee is in your office, so they can’t go back to their desk and wreak havoc with your computer system. Collect any office keys and company credit cards this employee might have.
7. Ask for a release, and give the employee an incentive to sign it. If the employee is a minority, a female or is over the age of 40, I would recommend asking them to sign a release of liability. Do not draft this yourself–there is very specific language a release form must contain in order to hold up in court, especially if the employee is likely to claim “age discrimination.” Have your employment law attorney draft the necessary release before the “exit interview”–it should take only about an hour of the attorney’s time.
Offer the employee something in exchange for signing the release, along the following lines: “You’ll be entitled to one week’s severance pay, Mary, but if you sign this release form, I’ll be happy to extend that to three weeks. Talk it over with your attorney if you like, and let me know what you decide to do.” You cannot force an employee to sign a release, but you can give them a strong incentive to do so. Also, giving the employee the chance to talk to their attorney demonstrates that you’re not worried about being sued.
8. Reassign the terminated employee’s job duties promptly. As soon as the employee leaves the premises, call your other employees together, tell them that the employee is no longer working for the company (but avoid giving details), and reassign their duties to other employees. That will prevent a “rumor mill” from starting and will inoculate the employees against any negative phone calls or e-mails they may receive from the terminated employee.
9. Do not fight the employee’s claim for unemployment benefits. If you do, there’s likely to be a hearing, which will be transcribed by a court stenographer. No matter what you say during the hearing, your ex-employee is likely to be awarded benefits anyway, and if you say one thing out of line, you’ve just given your ex-employee “Exhibit A” in their lawsuit for wrongful termination.
And the most important tip . . .
10. Get the job done. There’s only one thing worse than firing an employee who’s likely to get emotional, angry or violent, and that’s not firing them. Holding onto an employee who’s not performing or wreaking havoc with your business poisons your workplace in two ways: It allows the harmful behavior to continue, and it sends signals to other employees that they can get away with similar behavior.
Firing an employee is tough, and there’s no guarantee you won’t be sued no matter what you do, but if it has to be done, you do both yourself and your business a great disservice by putting off the inevitable.
Franchise Your Business
Before you even think of uttering those words, you’d better be sure they’ll stand up in court.
In most jurisdictions, an employer and employee are free to terminate their relationship at any time, for any reason. Sometimes called “at will,” this arrangement sounds simple. But the ramifications are far from it.
Most of us are aware that employees cannot be terminated based on their race, gender, age or disability. However, there are a number of other exceptions to the “at will” rule based on state and federal statutes. For instance, lesser-known laws provide protection for employees who are absent due to jury duty, military service or attendance as a witness in a criminal trial. Some states have limits on the use of criminal history in hiring and firing decisions. Others have protections based on employees’ sexual preferences and sometimes municipal law conflicts with state law. Suffice it to say that even an “at will” employer better have a well-documented cause before terminating anyone.
The key to avoiding litigation is good planning, knowledge and investigation.
Here are 10 steps you should take, so you don’t end up in the court room.
1. Distribute an employee handbook.
This document establishes disciplinary policies, communicates them to everyone equally and can offer you protection if an employee later takes you to court. Give a hard copy to new hires on their first day and have them acknowledge receipt in writing. Although there are “boilerplate” handbooks online, always consult a lawyer to ensure the handbook is specific to your business and complies with local laws.
2. Document violations.
When it comes to poor performance or violations of company policy, a conversation is not enough. Any issues should be in writing and acknowledged by the employee. Although you can do this by email, I recommend a written memorandum signed by the employee and placed in their personnel file. Undocumented issues leading up to termination are a recipe for expensive litigation or a costly settlement.
3. Enforce disciplinary policy.
Whatever the consequences are for violating company policy, it is up to you as the employer to enforce it consistently. When you make exceptions, even with the best of intentions, you risk claims of disparate treatment due to race, gender, age or disability.
4. Investigate before termination.
The moment you feel you want to fire someone is the moment a thorough investigation should begin into the basis of termination. This should include documented interviews with supervisors and co-workers as well as a review of any related computer files and emails. All evidence should be preserved to avoid any claims of spoliation (interfering with evidence).
5. Know the law.
Certain laws may have special significance to the person you are terminating. For instance, discrimination related to age, race and gender as well as disability. If you have any concerns, consult counsel to review any special circumstances as well as the process that led up to termination.
6. Put the employee on notice.
As an at-will employer, you’re not obligated to give an employee notice of termination, but warning of problems and giving the employee a chance to improve can soften the blow. A worker who is aware of the issues is less likely to file a claim. A common theme from plaintiffs: “They never told me I was doing anything wrong.”
7. Handle termination with dignity.
If an employee doesn’t improve after being put on notice, it’s time to end the relationship with dignity and in a professional manner. Firings should occur in a private area with at least one witness, but away from other employees.
8. Be brief and accurate.
Unnecessary information can create more questions than answers for the employee. It can also lead to more questions in court. A script with bullet points prepared prior to the meeting is always a good idea.
9. Avoid sugarcoating.
Be clear about the reason for termination. If the employee is misled and the true reason is disclosed after a claim is made, the employee will claim it’s merely a pretext or false. Once proven, this may shift the burden back to the employer to prove a non-discriminatory reason for the termination. Your credibility will be questioned.
10. Fulfill the requirements
Be sure to communicate all legal requirements including, but not limited to, COBRA benefits, last paycheck, unemployment options and transportability of other insurance. This should be confirmed in writing.
Where possible, I recommend severance policies that require the employee to sign a release to receive payment. These releases are generally enforceable and dissuade an employee from filing a claim. The severance cost is modest compared to a lawsuit.
And think twice before you deny unemployment benefits. In most states, absent an employee quitting, stealing or truly egregious misconduct, an employee who is terminated (even for incompetence) will be eligible for unemployment compensation. When an employer resists, it almost always leads to the ex-employee contacting an attorney. It’s not worth the cost of fighting a claim for discrimination or other protected activity.
Gawthrop Greenwood Associate John Larkin also contributed to this article.