So You Have to Terminate an Employee: The Ethical Way to Fire Someone
One of the most anxiety-inducing tasks that managers and HR reps face is terminating an employee. Not only do you need to worry about potential legal ramifications, but you also have to deal with the guilt of taking away a person's livelihood.
Firing somebody is unlikely to be the highlight of anyone's day. However, managers can do a few things to ensure each termination is legal, irrefutable, and conducted with tact.
Besides Montana, all states operate under at-will employment. At-will means that, with few exceptions, an employment relationship can end at any time for any reason or even with no reason provided. Even with at-will laws, nobody should ever be fired by surprise, except in the case of layoffs or a business closing. Don't forget, we also live in a country where people are free to sue anybody at any time for any reason.
If a termination does end up in court, the burden is still on the employer to prove that the firing was not wrongful. The best way to ensure that a termination is legally defensible is to have ironclad documentation about the performance or attendance issues leading up to the firing.
"I told Wilbur he needed to be on time," doesn't impress judges as much as, "Here are three written documents addressing Wilbur's attendance issues, and his signature is on all of them." This article will provide you with helpful information on how to protect your company during the dreaded termination process.
Make Policies Clear
The first step is to ensure employees know what is expected of them by giving every team member a physical or digital copy of the official employee handbook. An HR rep should thoroughly review the document with every new employee, preferably on their first day. Employee handbooks should specify general company policies such as email use, internet use, and employee privacy.
Set Clear Expectations
Handbooks don't typically detail performance expectations for each employee or how their job success will be measured. Provide accurate, detailed job descriptions during the recruitment process to help employees understand their primary responsibilities and how they will be evaluated in their new role. Make sure they have access to these documents via a company intranet or shared file drive.
Ensuring people know their primary responsibilities reduces the risk of a terminated employee saying, "I didn't know that was my job!"
Have Performance Conversations
Employees don't know they're failing to meet expectations if nobody tells them. For that reason, it's imperative to conduct regular performance conversations with employees and provide them with fair, honest feedback.
However, managers shouldn't rely solely on formal performance reviews. They should also provide real-time feedback to employees when warranted.
"Your audience wasn't very engaged in that presentation because of how quickly you were speaking" on the day it happened is a lot more helpful than "Your public speaking skills could use some work" three months later. By maintaining an open dialogue about performance, employees should always be aware of how they're doing and if they're at risk of termination.
Documentation is the single most crucial element you can have to ensure a termination goes as smoothly as possible. If a performance conversation wasn't written down, it didn't happen in the eyes of the law. For minor issues, a verbal discussion will suffice. However, if an employee starts to have substantial performance or attendance problems, you need to give them a written warning.
Many companies follow the "three strikes, you're out" mentality, but this isn't necessary. Some situations (assault, theft, being intoxicated at work) even warrant immediate termination. In any case, you must have some sort of written documentation that the employee has acknowledged with a signature.
Performance documentation should always include the 5 W's — who, what, when, why, and another what.
Who is the employee having issues, and who is in the meeting to discuss them?
What are the performance problems? Be very specific and detailed-oriented. "Wilbur has been late 10 times in the past month." "Wendy has provided inaccurate information in three of her presentations."
When were the specific dates these incidents occurred? This is useful when proving that the employee was given adequate time to improve.
Why does this require disciplinary action? Describe the impact of these behaviors. "Wilbur's coworkers have had to pick up his workload when he's late." "Wendy's misinformation has led to two lost clients."
This helps employees see why their behavior is a problem, which will, hopefully, encourage them to improve.
The second what is "what happens next?" Explain the expectations moving forward and the repercussions of not meeting them. By letting employees know their goal and the consequences of failing to improve, you eliminate the "surprise" termination.
Check for Consistency and Biases
When considering terminating an employee, it's essential to reflect on how you've handled similar situations in the past. If Wendy has been late 10 times and you want to fire her, but Wilbur has been late 20 times and hasn't received any type of warning, you could have a discrimination lawsuit on your hands.
Consistency is key in the treatment of employees, especially when it comes to terminations. Always check your own biases when handling performance problems. Sure, Wilbur might be a rock star employee who brings in tons of clients, but if he's late to work just as much as Wendy, you need to address both employees about their attendance issues.
In addition to your own personal biases, be aware of legally protected classes before terminating an employee. It's illegal to discriminate based on race, religion, gender, age, or disability. Even if terminating a person from one of these groups is wholly justified, it becomes even more imperative to have ample documentation and proof of consistent previous actions in similar scenarios to prevent a discrimination case.
Conduct the Termination
You've given the employee feedback on where they're failing to meet expectations, you've documented the conversations, and you've given them time and opportunities to improve, but you're not seeing any changes. It's time to terminate, but there are a few steps to take to prepare for the termination meeting.
Check In With Human Resources
Talk to HR about wanting to fire the employee. They should already be aware of the performance concerns and can help you compile the documentation from the employee's file.
Set a Meeting
Set up a time to speak with the employee. There's never a great time to fire somebody, but a common practice is to terminate midweek. This way, the individual doesn't feel as though they commuted to work on Monday for no reason, and it gives them time during the rest of the week to start making future arrangements.
HR should also be a part of the termination meeting. If HR is unable to attend, make sure you have another person in the room, preferably another manager, as a witness.
Plan Your Talking Points
You don't have to write a full script, but you should figure out what you're going to say. HR can provide you with guidance on what the primary points should be.
Start the conversation with a clear statement that this meeting is a termination of employment. This lets the employee immediately know what is going on. Give them a moment to process, and then provide the reasoning behind the firing, which will primarily be concrete facts from the performance documents.
Provide the employee with a termination document that outlines your previous performance conversations. Obtain a signature from the employee if possible, and make sure you and HR sign as well. If the employee refuses to sign, make note of that on the form.
Terminations are stressful for the manager, but even more so for the terminated employee. Be empathetic, but do not let your emotions run the show. A termination meeting should be factual, concise, and diplomatic. It should not leave room for a debate.
If the employee starts arguing or begging for their job back, a good line to use is, "I understand this is difficult, but our decision is final."
The more prepared you can be for this meeting, the better. By having the performance documentation in front of you, you can succinctly review the steps you took before arriving at termination. HR is your partner in this conversation, so lean on them for advice on what to do prior to and while delivering the firing.
Have Post-Termination Protocol in Place
After you have delivered the news of termination, allow HR to take over. They can provide information such as how to continue benefit coverage, how the final paycheck will be delivered, what it will include, when and how the employee can gather their belongings, and information on unemployment and references. When HR wraps up, wish the employee well and have somebody walk them out of the building.
You will also want to inform other employees of the termination. Don't divulge personal details of the scenario, but do let coworkers know that the employee is no longer with the company. You should also have a meeting with the employee's direct coworkers to establish a game plan for dividing up the terminated person's duties.
Now that you're equipped with these tips and resources, firing people will be as easy as breathing. Just kidding — it's never fun (and if it is, you probably shouldn't be in a position where you can fire people).
Hopefully, with clear expectations set and proper feedback given, fewer workplace issues will reach the stage of termination. And those unfortunate ones that still do will be more straightforward and less stressful for everyone involved.
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