Thursday, April 18, 2019

How to fire an employee

The Wall Street Journal recently asked this simple question:

What's the Best Way to Fire Someone?

I have some thoughts.

  1. Before you pull the trigger, ask yourself, "Is this employee going to perceive that the decision was fair." Did the employee have notice of the issues that caused the termination? Had the employee recently complained or otherwise engaged in protected activity? To look at this issue another way, mock-jury your decision. If the employee lawyers up and sues, will a jury think your decision was fair? If jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much more likely to find in the employer's favor.

  2. Do not mistreat the employee at the time of termination. Terminated employees deserve a face-to-face discussion. At all costs, avoid firing by a letter, phone call (or, worse, voice mail), email, text message, Facebook post, Tweet, or any other not-in-person communication. Do not "perp walk" a fired employee. Some employees deserve to be shown the door swiftly and coarsely. They stole, they harassed someone, or they assaulted someone. For most terminations—the "you're not a good-fit," the "it just isn't working out," the "we're going in a different direction"—you want to do what you can to avoid litigation, or the employee trashing you on Glassdoor and other review sites. And not perp walking the fired employee is a great first step.

  3. Offer the employee some explanation for your decision, but understand that if sued, you better be able to back that decision up, else a judge or jury might find your decision to be pretext for an unlawful reason. Offering no reason leaves an employee to scratch their head, which takes us right back to point 1 above—"If they don't have a reason (or won't tell me the reason, is this decisions fair?" Offering too detailed of a reason could lead to issues of proof in litigation down the road, and could open turn your conversation into a debate (which is the last thing you want). Instead, look for the Goldilocks reason—the "just right" amount of an explanation so that the employee understands the rationale. If you've previously communicated to an employee documented performance issues, there is no point in rehashing them at termination. It accomplishes nothing and can be perceived as cruel. Instead, simply remind the employee that you've previously discussed the issues, which have not improved. Further, the more detail you provide, the more penned in you will be in later litigation. Your goal is to be honest with the employee, yet, in the event of litigation, provide your counsel with the most flexibility to support the termination.

  4. In all but the most egregious of terminations, offer a soft landing through a severance package … but only in exchange for a release of claims by the employee. Some employees deserve nothing (theft, harassment, etc.). But, most should walk out the door with something. While you are not under any legal obligation to provide severance to any employee (unless you have a plan or policy that says otherwise), there is a lot of value in getting their signature on an agreement in which they promise not to sue you. It's closure, for both you and the employee, and helps create that little bit of good will at the end of the relationship.

The bottom line? The firing an employee the wrong way—a termination text message, a perp walk, and zero dignity—leads to bad feelings, which leads to expensive and time-consuming lawsuits. Never forget that losing a job is one of the worst things that can happen to someone. A little compassion goes a long way.

What are your top tips for the "best" way to fire an employee? Leave your thoughts in the comments below, @ me on twitter with the hashtag #terminationtips, or on LinkedIn by posting a comment in this thread.
* Image by mohamed Hassan from Pixabay