Robin Thomas, J.D.

No one likes to be the bearer of bad news, and notice of
termination is perhaps the hardest news you can deliver. To make matters worse,
mishandling terminations can lower employee morale and lead to lawsuits. But,
if you allow a poor performer or a disruptive employee to keep working,
productivity and efficiency are bound to suffer.

So, terminations are a
simple fact of life for managers. However, they don’t have to be traumatic or
automatically result in a legal claim. If you follow the eight steps
recommended below, you can reduce stress and the chances of ending up in court.

The eight essentials

  1. Follow
    your policies. Make sure you have followed your own policies as closely as
    possible, especially your progressive discipline policy, and have a
    business-related reason to justify any deviations.
  2. Be
    consistent. You don’t necessarily have to treat every employee exactly the
    same, but you should treat “similarly situated” employees (those with
    similar jobs, performance histories, and length of employment) as consistently
    as possible or have business-related reasons for your inconsistencies.
  3. Investigate
    fairly and thoroughly. Before you terminate, make sure you have conducted
    a fair and complete investigation, particularly in cases of misconduct. In
    addition, the investigation report should document the reasons for the
    termination and show you followed your policies.
  4. Consider
    the legal risks. Analyze the risk that the termination will cause legal
    claims. For example, consider the potential for claims of discrimination,
    wrongful discharge, retaliation, violations of the Family and Medical
    Leave Act, failure to accommodate under the Americans with Disabilities
    Act, or wage and hour violations. If you are concerned the employee may
    file a claim, consult legal counsel. Also,
    if the termination decision has been mishandled, or if you lack adequate
    documentation, you should consider asking the employee to sign a release
    agreement. In such an agreement, the employee waives the right to sue in
    exchange for some extra benefit, such as additional severance pay.
  5. Document
    the reasons for termination. Records in the employee’s personnel file
    should accurately state the reason for termination and include items such
    as performance appraisals reflecting problems and suggested improvements,
    counseling memos, written warnings, and investigation results that
    document any misconduct.
  6. Plan
    the termination meeting. In particular, make sure you have 1) picked a
    good time for the termination conference; 2) selected a suitable location
    to preserve the employee’s dignity and privacy; 3) chosen the appropriate
    attendees for the conference; and 4) prepared all necessary or final
    paperwork (such as COBRA notice and final pay).
  7. Tell
    the truth. Give the employee a factual reason for the termination. Avoid
    the temptation to rely on the at-will employment legal defense and thus
    not give a reason. Also, don’t call the termination a “layoff” when it’s
    actually based on performance problems or work rule violations. Misguided
    attempts to “soften the blow” can cause confusion and lead to
    discrimination or wrongful discharge claims. The employee is more likely
    to assume your “real” reason is illegal or discriminatory. Instead, be straightforward and factual, but
    avoid unnecessary elaboration or injection of personal opinions. Don’t try
    to downgrade the reasons for termination to spare the employee’s feelings
    or indicate you don’t agree with the decision. Such comments may encourage
    a lawsuit and be used against you.
  8. Limit
    discussions about the termination. Do not discuss the termination with
    anyone other than those individuals who have a legitimate business need to
    know about it, like the employee’s immediate supervisor, your supervisor,
    and legal counsel. Doing otherwise can lead to claims for defamation,
    invasion of privacy, or other personal injury.

Proper Procedures Reduce Termination Trauma

By following a
consistent process that includes these eight steps, you’ll develop both greater
confidence in your decisions and help insulate your
organization from legal exposure. At the same time, your candor and attention
to detail will convey to the employee that the decision, no matter how
distasteful, was not arbitrary or illegal.

Robin Thomas, J.D., is
Managing Editor for Personnel Policy Service, Inc., 159 St. Matthews Avenue,
Suite 5, Louisville, KY 40207, and can be reached at,
or 1-800-437-3735. Personnel Policy Service markets group legal benefit
services and publishes HR information products, including a model Termination
of Employment policy.