Terminate with Care - and Sympathy

03/05/07

According to attorney Suzanne Bogdan, more than 450 employment lawsuits are filed each week. Naturally, many of these cases make it into court, where many an employer wishes ruefully it had handled the situation in a different manner. Reason: The average payout for a verdict in favor of the plaintiff (the employee) exceeds $250,000, and 15 percent exceed $1 million. Ouch.

That’s why it pays to look before you leap, especially when it comes to terminations.

Questions to Ask
A partner with the employment law firm Fisher & Phillips in Fort Lauderdale, Florida, Bogdan recently outlined termination dos and don’ts to a group of HR professionals. When you’re thinking about firing an employee, she said, ask yourself a few questions:

If a rule was broken, was the rule clear to the employee? Did you communicate it adequately? Do you have proof of the violation? Witnesses? Finally, does the employee admit to violating the rule?

If the problem is poor performance, are the standards clear and properly communicated? Have you given the employee fair warning of failure to meet standards? Are warnings well documented?

Whether rule violation or poor performance, how have you handled similar situations in the past? Analyze past cases and make sure you’re consistent.

Added Bogdan, “When it’s a situation of failing to meet standards, make sure you have quantifiable measures to point to, like quotas, calls made, or units produced.”

Consider Circumstances
In any potential termination, you need to look at all sides of the situation carefully. An employee might, for example, have broken the rule for a good or unavoidable reason.

You should also look into your crystal ball: Will your witnesses be around to testify in five years if a case takes that long to wind up in court? Just as important, how will the case look to a jury if it comes to a trial? “And not just any jury,” said Bogdan, “but a jury of the employee’s peers.”

Finally, look inside. Ask yourself, she said, “Is there anything about the situation that makes me cringe inside?” If so, reconsider your action or answer any pesky little questions until you’re comfortable with your decision to terminate.

Terminate with Dignity
Once you’ve decided to fire an employee, do so with dignity. Your aim: Cut down on the embarrassment factor. “Excessive embarrassment,” said Bogdan, “can prompt some to sue.”

She advises terminating employees on Friday afternoons, and in private. Why Friday? Bogdan: “Plaintiffs’ lawyers and the government do not work on weekends.”

When firing, say as little as possible, and don’t argue with the employee. However, it can be useful to let the employee blow off a little steam. You might also allow the employee to save face by offering the opportunity to resign. “But if you allow someone to resign,” said Bogdan, “save all termination paperwork. The person may call it a ‘constructive discharge,’ and you’ll need to be able to defend your actions.”

After the deed is done, don’t talk about it with employees other than to relay the simple facts. If anyone calls for a reference afterward—prospective employers, lawyers, or government agencies—give nothing more than dates of employment, the position held, and final pay rate. And think twice about fighting the employee’s attempt to get unemployment compensation. “If people get unemployment,” said Bogdan, “they may just go away.”