By: Kimberly M. Covington-Collier, PHR, SHRM-CP
Terminating an employee can be a difficult task that can be tricky at best and, if not done correctly, have negative legal ramifications. The difference is in how you handle each situation.
There are two types of terminations:
- Involuntary termination, where an employer decides to end the work relationship through firing or lay-off, or
- Voluntary termination, where an employee resigns under their own volition
Voluntary terminations are by far the easiest to deal with. Employees initiate the process and resign. Simple as that. These types of terminations can be invaluable, as exit interviews allow t company representatives to have a candid conversation and gather information to improve the organization.
Involuntary terminations, on the other hand, are more delicate and must be handled discreetly for two reasons:
- You need to be sure your reasons for the terminations are well documented and truthful and
- You do not know how the employee will handle the news
When a manager is weighing the option of terminating an employee due to disciplinary issues or work performance, they must lay the groundwork well in advance to ensure that the termination is done properly and is well documented. Doing so will avoid any possible legal action from an employee who feels they’ve been wrongly terminated. Here are a couple of items to be aware of:
It is imperative that you keep detailed records when it comes to performance or disciplinary issues for any pending termination. The situations can vary in different cases for instance with new hires, it will be done during their probationary period-which is typically 90 days. For a seasoned employee it begins with the first incident. Most are placed on either a Performance Improvement Plan for performance related issue for 30 days. For disciplinary issues, managers will follow their progressive disciplinary policy, typically lasting 30-45 days. All interaction between an employee and management regarding performance or disciplinary action should be documented.
The Employment-At-Will Doctrine
Some employers believe that because they may be in an “at-will state” they can terminate an employee whenever they want to. That is not necessarily the case.
- Public-policy exception – protects employees against adverse employment actions that violate a public interest such as reporting a violation of the law.
- The implied-contract exception includes oral assurances by a supervisor or employer representative. For example, saying, “We need good people around here, you’ve got a job for life!” may give rise to an implied contract.
- Covenant-of-good-faith exception includes firing an older employee to avoid paying retirement benefits or terminating a salesman just before a large commission on a completed sale is payable, for example.
Once you have your documentation in order, here are the Do’s and Don’ts of the termination meeting:
- Do come prepared. Include a checklist that can serve as a guide of items to go over. This should include the return of office items such as keys, codes, laptops, etc.
- Don’t allow the employee to have access to the work area after the termination meeting. Allowing them to gather their possessions after hours or have a designated person deliver their items. You don’t want a terminated, potentially angry, employee to have access to company files, or to make others uncomfortable with displays of emotion.
- Do have a witness present. Ideally, include an HR representative or another supervisor who can explain the terms of the termination and provide additional information on last paycheck and benefits.
- Don’t provide a long explanation for the termination. At this point, the expectations should have been discussed and documented from previous conversations. Ensure that you are clear and concise in your decision and do not waiver.
Be prepared to be the looked upon as the “bad guy” and make peace with it. Terminating an employee can and should be done with decency and respect. If you feel like you are unable to accomplish this task, be sure to have your HR representative or another company representative guide the process.
Kimberly M. Covington-Collier