If you supervise employees in any capacity, there will come a time when you need to let someone go. Here are some tips for making the best of a bad situation, and avoid legal trouble in the process:
Stay calm & avoid instant firing decisions
Never, ever, yell “YOU’RE FIRED!!!” Calm down, think it through, explain out loud to a trusted adviser—which may be a lawyer if there are potential legal claims—why you’re making that decision.
If something really bad happened and you need to get the employee out of the workplace immediately, suspend with pay while you investigate.
Step into the employees’ shoes
Don’t forget how important the job is to the employee. What we do for a living is a big part of who we are. The money (and potential loss) are important, but so is the sense of self worth, pride and community that is the workplace.
This doesn’t mean you keep a bad apple working, but it should affect how you communicate the decision.
Check your ‘fairness’ meter
Ask yourself if you’re being fair to the employee. Have expectations been communicated to the person? Is this decision consistent with how the rules are applied to other workers?
Make sure the termination isn’t retaliation
One of the easiest claims for an ex-employee to prove in court is retaliation for engaging in protected conduct, such as complaining of sexual harassment or making a claim for unpaid overtime or requesting an accommodation for a disability or time off for pregnancy.
It’s easy to prove because juries understand that we truly do feel defensive—and yes, retaliatory—when someone accuses us of something wrong.
Conduct the termination meeting respectfully
Meet in as private a setting as possible. Anticipate questions and be prepared with answers. Plan for how the employee will get his/her possessions. Try to avoid the scenario of the public walk of shame, box in hand, to the elevator.
Also, always have another manager or HR person there as a witness. That way, it’ll be much harder for employees to challenge what you said later on. After the meeting, write a memo about what was said by you and the employee. Have the witness sign it.
Tell the truth
Be honest with the employee about why you’re doing this. You don’t have to go into every detail or beat them up with it, but at least give the overview. Not only will a consistent message serve you well if the employee sues, but people are less likely to bring a legal complaint if, deep down, they get it.
Finally, don’t discuss your reasons for the termination with other employees or outsiders. It’s enough to say, “Kevin won’t be working with us anymore.”
Author: Kathy Perkins, founder of Kathy Perkins LLC Workplace Law & Mediation, in Lawrence, Kan., and a mediator for the Missouri Commission on Human Rights.
