Let’s face it, we are all ruled by our emotions. How do you feel when someone cuts you off in traffic? How about when someone insults you or calls you an unflattering name? Most people have a natural reaction in such situations: They want to get even.
My point is this: People act on emotions. When you decide to fire an employee, if you can do it in a way to minimize the emotional impact on the employee, you will reduce the likelihood of a dispute with the terminated employee. Most people can think of something more fun to do than tracking down a lawyer. However, if a person’s last memory at work is of being dissed, it’s a sure bet that person will find a really nasty attorney to come knocking on your door.
If a termination is executed incorrectly, that can pour fuel on the fire of an employee’s grievances and increase the likelihood of a claim being brought against your company.
So, how would you like to be fired? Let’s assume that your company decides to fire an at-will employee and you have been asked to conduct the termination. First, you conduct a thorough, pre-termination investigation, and run through your termination checklist to get a handle on any exposure your company may have regarding the employment relationship. Assuming that you are given the green light to proceed with the termination, it’s time to think about HOW to let that person go, in such a way to minimize risk.
1) R-E-S-P-E-C-T. Can the termination be done is a respectful manner? Can it be done so that the employee does not need to walk past co-workers? Is there a private room where you can meet with the employee? Is there a non-threatening person that you can bring with you as a witness? Would you want to be terminated in a glass-walled conference room in full view of your coworkers? I don’t think so.
2) Ripping the band-aid off quickly. A termination is no fun for anyone involved. Is there any reason for it to take any longer than it needs to? Engaging in a long conversation with an employee or allowing him to plead his case is a recipe for disaster.
3) Stick to your script. Having a script and sticking to it is important for a smooth termination. If the employee has been terminated due to performance concerns, can you explain the company’s reasoning in a non-inflammatory way? A good practice is to have a prepared, brief termination letter and to and it to the employee during the meeting.
4) It’s time to go. Hand the employee their final paycheck and explain to her that she needs to leave the office now. Explain that you’ll set up a time either before or after business hours, at which time she can come back to pick up her personal items.
5) Follow up. A lot of issues are best addressed in a well-crafted follow-up letter. Reminding the employee of his obligations regarding confidentiality, trade secrets, non-compete restrictions and non-solicitation covenants is best done in writing, after the termination. This is also a good time to cover any remaining issues, such as a COBRA notice, if applicable.
Attorney John David Schrager