Legal, human resources and management experts share their advice to employers on how they can avoid legal and safety issues when terminating an employee.
REPORT FROM THE U.S.—While terminating troublesome employees might solve problems in the workplace, the act of letting them go can create issues for the employer if not done carefully.
Sources said companies need to have established policies about terminating employees and they should follow them. That said, not every situation is the same.
“Terminations are not cookie-cutter experiences,” said Chuck Conine, founder of Hospitality HR Solutions. “They should be styled to the individual while still adhering to the basic guidelines the company requires.”
Respect and dignity
As someone who has worked in management for 40 years, Gerry Chase, president and COO of New Castle Hotels & Resorts, said if an employer respects his or her employees, treats them as human capital, hires the right person for the job and provides clear expectations of the employee when hired and trains them to meet those expectations, the employer won’t have to deal much with terminations.
If the employer needs to let an employee or employees go via a layoff, he said, it’s best to be honest and provide advance notice.
“I’ve had people come back and say, ‘I want to work with you again. You’re fair about your approach,’” he said.
If an employee’s attitude breaks down, they’re no longer a fit or they’re not doing the job assigned, Chase said, he or she needs to go through a progressive process.
“Give them every opportunity to win in that job,” he said. “Give them ample notice and understanding. If they’re not able to do their job, you have to change them out. If you do that in a consistent and fair manner, you won’t have many challenges.”
It’s a matter of doing it in the right way, Chase said. Employers have to show respect, up and down.
“People ultimately want that,” he said.
When and how
Fridays are not a good day to terminate an employee, Conine said, adding that it’s probably the worst day because it allows them to go home, get drunk and plot revenge over the weekend. If it’s done on a Monday, the employee gets a day to be angry but then can go file for unemployment. If they have questions or need more information, they can call during the workweek, but if they’re let go on a Friday, the manager and human resource employees are likely gone for the weekend.
“Does that mean you can’t get an employee off-site on a Friday? No, but if it can wait until Monday, I think that’s probably better in most cases,” he said.
Conine said he always encourages managers to use the “fail-safe option.” Suspend the employee pending an investigation, he said, which allows managers maximum leeway to determine their course of action after completing all due diligence. Get all the facts, conduct interviews and document everything necessary, and that includes speaking with the employee in question to get his or her side of the story.
This gives the manager two to three days where the employee is not working and not on-site, he said, and the manager can make a reasoned decision because there is more information available now than when the employee was first suspended. It also provides time to talk to the human resources department and legal counsel, allows the employee to assemble a defense and gives the manager time to double-check documentation to make sure termination is the right decision, he said.
“Probably the best thing about suspensions pending information is you retain control over the employee, and this is crucial,” he said.
The investigations also means the manager might find out the employee hadn’t violated any policies or the violation wasn’t as large as reported, Conine said, which means the manager could let the employee off with a warning instead of a termination. Otherwise, if the manager determines the employee shouldn’t have been terminated after the fact, that employee likely isn’t coming back and might even file claims against the company.
If a manager sees the need to terminate an employee, Conine said, don’t do it while the employee is on vacation. There’s no conceivable reason to interrupt that, he said.
When an employee needs to be fired, it’s important to consider the employee’s individual personality and past behavior to determine how the employee would react to different ways of letting them go, Conine said. Using the fail-safe option is helpful because it allows the manager to get all the ducks in a row ahead of time.
Most often, the supervisor will know the employee best, he said, and that could be the GM, regional manager, an HR manager or some combination of those.
“I don’t like phones, and I don’t like mail,” Conine said regarding how to terminate an employee. “I like face to face.”
While there could be some problems that arise from terminating an employee in person, such as the employee threatening violence or running through the property yelling about cockroaches, he said, part of that concern can be alleviated by hiring the right employee in the first place. Choosing the right person for the job and checking their qualifications and references and having them pass a pre-employment drug test decreases the likelihood of having someone who will create problems.
“When none of that is done, when you’re just hiring warm bodies, anything goes,” he said. “You’ll be constantly wondering if you have to tell them in person or to call them up and say, ‘Sorry, you’re not on the schedule anymore.’”
Every company needs a workplace violence policy, said Gina Cadogan, an attorney at Hamilton, Miller & Birthisel, and it should be given to every employee, not just supervisors. A zero-tolerance approach should apply to everyone, she said, without special treatment for any employee, including a CEO. Any claims of workplace violence or bullying should be investigated immediately, she said, and supervisors should receive training on how to handle receiving complaints from their employees.
Any violations of the workplace violence policy should be documented in the offending employee’s files along with following through with the proper disciplinary action, she said.
If a situation requires an employee be terminated but hasn’t been otherwise on the radar, Cadogan said, terminate the employee with dignity.
“I’ve had situations where employees who were terminated and just marched out to their embarrassment,” she said. “That’s not with dignity. That could turn into a bad situation.”
If the employee being terminated has a history of workplace violence issues, the company can put things in place to prevent further problems, she said. Talk to a crisis-management team on how to address the termination before it happens, she said.
Think about the environment where the employee will be terminated, she said, such as on-site or off-site through a phone call or a letter.
After the employee is terminated, revoke any security access he or she had, Cadogan said. Let the other employees know so they know not to hold the door open for the former employee, and tell them to let their supervisors know if the fired employee is following them, she said.
To prepare for the worst-case scenario, she said, it’s important to have an active violence plan. The current advice is to have employees run and hide and, if it comes to it, fight.
Other legal matters
It’s become normal for companies to provide a neutral job reference for former employees, Cadogan said, but that can sometimes open them up to liability if that former employee has a history of workplace violence.
She cited a situation in which a Florida man received a neutral job reference from a former employer when applying for a job at another insurance company and, after being fired from his new job, shot and killed several of his former coworkers from the second job. The wives of those killed and an injured coworker then sued the first company, arguing it knew of his strange behavior and potential for violence and did not disclose it to their employer.
Florida is a state that protects companies from defamation if they provide truthful information about a former employee. While state laws vary, the truth is the ultimate defense against defamation, she said. This is why it’s important to have a workplace violence policy and it’s important to document every situation properly, she said.
“It’s more important to help protect lives than worry about a lawsuit that is baseless,” she said.
Require reference checks in writing, Conine said, and don’t provide anything over the phone because sometimes people like to impersonate companies to find out what the reference would be and can get upset if they hear something they don’t like. Verify all written requests, he said.
“As I’ve said many times over the years, the best money you’ll ever spend is making one phone call to your attorney,” he said regarding writing references. “They will have the most current information, not only about what happens in your state or as a multistate operator, but they’re also able to say in the real world, these kinds of comments are challenged more by employees.”
If the employee has a confidentiality, noncompete agreement or nonsolicitation agreement, Cadogan said the employee should be reminded about the restrictive covenants.
“The employer could either provide the restrictive covenant to the employee during the termination or tell the employee about the restrictive covenants and then prepare a memo to file documenting the date and time of the notification,” she said. “If the termination will be by letter, the agreement should be provided as an attachment to the letter.”
A terminated employee will likely want to know why, Cadogan said. Generally speaking, she said, employers don’t have to give a reason for termination, but it depends on the situation with the employee. In some states, the employer needs to get legal advice before answering such a question, she said.
Some situations are simple to explain, Conine said, such as the employee is being laid off because the company doesn’t need as many employees in that department. Other situations, such as that employee is making his or her colleagues feel uncomfortable, aren’t as easy to explain. In those types of situations, he said, that’s why it’s important to have already provided warnings and counseling as well as documenting any incidents.