Five Tips for Better, Less Risky Terminations

Involuntary terminations can be tough to do well. Even when discharge is clearly warranted—such as in egregious for-cause situations—few managers are eager to sit down with an employee to deliver the bad news. And even fewer are interested in becoming expert in the art of letting someone go. But this doesn’t mean that termination discussions should be taken lightly. A well-executed termination may mean the difference between an amicable separation and a wrongful discharge claim.

Savvy employers know that employees who feel that they are treated fairly are significantly less likely to pursue wrongful discharge claims than are those who feel like they got a raw deal. Here are five recommendations for better terminations that reduce litigation risk:

  1. Do it in person.

    Occasionally, coordinating an in-person termination discussion is impossible, such as when the employee being terminated works in a remote location or refuses for some reason to cooperate with the employer’s request for a meeting. In all other situations, terminations should be handled in person. No, there’s no legal requirement for a face-to-face conference. And yes, an e-mail—or even worse, a text—might convey the message effectively. But the fact remains that employees, even bad ones, deserve to be treated with dignity and respect. Setting aside time to meet in person to discuss termination demonstrates that the employer understands that this is an important and serious matter. And unlike one-way termination notices (e.g., letters, e-mails, texts), a termination conference gives the employee being terminated the opportunity to ask questions and to be heard. This can soften the blow of otherwise unpleasant news and help focus the employee’s attention on the path forward.

  2. Have a plan, and stick to it.

    At first blush, executing a termination doesn’t seem like rocket science. But, in fact, there are dozens of small details that can be difficult to manage on the fly. When will the termination meeting happen? And where? Who will attend, and what, exactly, will each attendee say? The best termination discussions are carefully choreographed from start to finish. Before the termination meeting, it is wise to prepare a written plan that includes scripted talking points. This way, the terminating manager and HR representative will know how the meeting should run and what role each will play. And in the event of a post-termination dispute, the plan and script serve as evidence of what occurred during the meeting.

  3. Address the reason for termination head-on.

    It can be challenging to sit eye-to-eye with an employee while explaining to her that she is being terminated for cause. The natural reflex is to downplay the reason for the termination or to apologize that it is happening. But vague explanations like “We’re sorry to have to do this” or “It’s just not working out” don’t help anyone—they only muddy the waters with respect to the discharge. While in most states an employer is not obligated to tell an employee why she is being terminated, in the vast majority of circumstances, there is no reason to avoid doing so. Despite the at-will employment doctrine, most employees expect that they will not be fired without a good reason (and judges and juries tend to agree). An employer’s reluctance to identify and discuss the basis for termination can lead an employee to believe that other-than-legitimate factors may be at play with respect to the termination.

  4. Be humane.

    Remember that it’s difficult to lose a job—even when discharge is much deserved. A showing of compassion helps a termination meeting run smoothly and requires little extra effort on the employer’s part. For example, selecting a discreet and private location to advise an employee of her discharge may keep her from feeling like she was fired in front of her co-workers (such as in a glass conference room off of a busy hallway). Similarly, giving the employee being terminated some control, within reason, over the way she leaves the office can help ensure a dignified departure. Some employees prefer to slip out discreetly and have personal belongings shipped after the fact, others want to pack up and say a few goodbyes before going. Depending on the circumstances, both of these may be acceptable to the employer, and allowing the employee to choose may take some of the sting out of having been let go.

  5. Discuss the termination on a need-to-know basis.

    In most cases, there is little reason to rehash the details of a termination once it has been executed. But saying nothing further about it can backfire. Co-workers of the employee who was fired will notice her absence, and if the termination isn’t addressed at all, gossip will fill the void. Accordingly, it’s appropriate and often necessary to inform co-workers of a termination. Something simple and straightforward—such as “Danielle is no longer with the company; I can’t go into details because I want to ensure her privacy”—often quells the rumor mill. Focusing on the future is similarly effective. Co-workers will want to know what impact, if any, the termination may have on them. Will responsibilities be reallocated? Temporarily or permanently?