If you’re an employer and you’re reading this, chances are you’ve had to fire an employee for one reason or another. It could have been for cause or for economic reasons. Maybe the worker was simply not a good fit. In most situations, the employee probably left peacefully, although perhaps a bit angry or hurt.
But some workers don’t leave quietly and instead come back at their employers with lawsuits, even if there were legally valid reasons for the firing. In those cases, it’s often how the employer fired the worker and not the job loss itself that triggered the employee’s response. However, a little bit of smart strategy can defuse some of the tension in an emotionally fraught situation and potentially head off a lawsuit that could be costly, distracting and stressful, even if you win.
So how do you keep a legally justifiable termination from backfiring? By handling the termination in a manner that doesn’t come across as callous and disrespectful.
One way to accomplish this is through a “fairness-dignity checklist” of factors that should be considered in conducting a termination.
For example, such a checklist would address the amount and type of notice you’ve given the employee regarding the performance deficiency that’s now cost him his job. Was there any previous discipline or counseling, and was it thoughtful and calm? Did you provide notice of the employee’s deficiencies in writing? Did you describe the problem, the actions needed to correct it and the potential consequences for failure to do so in a specific manner? Was the employee really given a fair shot to address it? If the answer to any of these questions is “No,” you should think hard about whether this is the right time to follow through with the termination.
If it is the right time to proceed, the checklist should address the worker’s relationship with the supervisor or key decision-maker who will actually be carrying out the firing. Do they have a good relationship, or at least a neutral one? Do the employee and others in the organization perceive this person as fair? If they don’t, might there someone else better equipped to handle the situation?
The checklist should also address how the actual meeting will be handled. For example, can the person running the meeting avoid personal criticisms and loaded terms like “insubordination” and “incompetence?” Can he or she avoid embarrassing the employee through such actions as making her clean out her desk during the workday before being escorted out by security in front of all her co-workers?
Finally, is it possible to minimize hardship to the employee? For instance, do you plan on challenging his or her claim for unemployment benefits? If so, you’d better be able to definitively prove misconduct, which includes showing that any misconduct wasn’t justifiable as a result of poor working conditions. Could the employee perhaps be given an opportunity to resign instead of getting fired? Could she receive some salary or benefits as severance?
It all really boils down to this: If it was you or a loved one being terminated in the manner you have in mind, would you be OK with it?
If you’re doing things right, you should be answering most of these questions with a “Yes.” In addition to potentially heading off a lawsuit, this approach can promote morale in your workplace, because in the age of social media your other employees will inevitably learn the circumstances of the firing. But this is a complicated area and these tips are just a start, so talk to an employment lawyer to learn more.