Making the Firing Decision - How and When to Cut your Loses
Business owners should not run scared. If an employee is not right for the business, he or she should be asked to leave. This is true regardless of the employee’s gender, race, physical limitations, or religion. True, state and federal laws play a vital role in protecting employees from decisions based, even in part, on any of these factors. Nevertheless, a business should never be afraid to make a termination decision for legitimate reasons.
The primary fear of most business owners is that even legitimate firing decisions will be called into question by disgruntled former employees. The best defense is a rational and documented policy applied evenly across-the-board to all employees. This policy includes documented job descriptions against which each employee’s performance is compared, a consistent evaluation policy, and a well-maintained personnel file.
In certain cases, an employer may terminate on-the-spot without regard to the niceties of documentation over time. These situations involve dishonesty, endangerment to health and safety, use of alcohol or drugs at work, violent behavior, or the unauthorized disclosure of company trade secrets.
Performance and attitude issues, however, are both far more frequent and more difficult to remedy. Where issues involving poor performance, insubordination, poor attitude, abuse of sick leave, or excessive lateness or absence are concerned, documentation over time is vastly preferable to termination on-the-spot where it comes to protecting your company from a future lawsuit.
There is no substitute for written documentation of failed disciplinary measures, habitual tardiness, or poor interaction with peers and/or customers, where defense of a lawsuit is concerned. Written documentation will always be more effective than even the most heartfelt testimony in the eyes of a judge or an EEOC hearing officer. This is true even for notes placed in a personnel file without the employee’s countersignature. Always follow the rule that “if it is worth remembering, it is worth writing down.”
An exception to the written documentation rule involves peer reviews. It is usually a mistake to request an employee’s peers to comment on his or her behavior. While complaints, particularly those involving sexual or other forms of harassment, are an obvious exception to this rule, asking a non-supervisory peer to provide comments on another’s performance will often backfire.
Once a firing decision is made, it is best to follow a few simple rules:
- Have the conversation in private.
- Arrange the conversation in such a way as to minimize disruption in the workplace.
- In most cases, the employee should be asked to leave immediately, even if severance will be paid.
- The employer should be prepared with written documentation of severance offers and a written statement on the company’s policy concerning the provision of references.
- The employer should be prepared with full calculations of unused leave, overtime, and other benefits to which the employee is entitled.
- The conversation should be direct and to the point.
- Never try to “sugarcoat” the reason for termination.
- Never refer to a need to change the company’s image or mention physical limitations as a reason for the termination decision.
- Treat the fired employee with dignity.
There is a lot of debate on the proper time to fire an employee, but most experts agree that Friday afternoon is the worst. The best thing for a terminated employee is to be able to overcome the shock through activity and turn his or her attention toward the task of finding new employment. A Friday afternoon termination gives that employee nothing to do over the weekend but stew.
Once the employee has been fired, it is important to tell the remaining employees. A business owner should not be lulled into thinking that “no explanation is the best explanation.” Invariably, employees will notice the empty chair and fill in their own information out of gossip and innuendo. It would also be a mistake to overly dramatize the situation by stating “I am not able to discuss the matter upon the advice of our attorney.” Instead, simply state facts and let the matter drop. An example might be “we had to let Jim go this morning after it became obvious that he was not able to improve his job performance.” Direct and to the point.
Finally, an employer should always evaluate the possibility of providing severance in exchange for a full and complete release. Often, a company will decide to pay severance out of established practice and will find itself on the wrong end of a lawsuit once the check clears. A far better practice would be to pay severance in exchange for a release of all claims. While Maryland law allows an employee sufficient time to consider the ramifications of signing this release, it frequently benefits both sides to increase the amount of severance slightly and eliminate the possibility of a future claim.
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