Employer planning for employee terminations

Employee terminations are a necessary and stressful activity of every well-run organization. To my way of thinking, it is impossible to avoid terminations even if your selection process is the best it can be. Good employee’s performance can change for the worse and you can’t always predict which job candidates will integrate well with your staff and which ones will cause serious issues. The worst employees may leave a trail of illuminating references if you conduct sound employment background verification but this can be subverted as well.  Finally, I have observed some organizations suffer poor employee relations relating to hesitancy to let employees go, thinking this is an employee-friendly posture. This actually creates problems as employees watch poor performers and trouble makers continue their employment without consequence.

Planning and guiding employee terminations is complex and should be conducted by professionals with experience in human resource management; familiarity with company policies and state and federal laws; and the authority to make management decisions.  Because of the number of factors involved in planning a termination, there is no way to create a simple road map. Rather than attempting to “teach” proper termination, I have created a series of questions that might help to support professionals planning complex or difficult terminations.

Finally, these lists are not exhaustive and are not meant to convey any type of prescription or legal advice. Supervisors or employers contemplating terminations are encouraged to retain a knowledgeable consultant and/or consult with legal counsel during the planning stage to ensure that company actions are ethical, legal and compassionate, though firm.

Clarify the precise reason for termination

Annoying the employees around you is not necessarily grounds for termination but it may be a hint that something is wrong. When planning terminations, it is helpful to have a clear understanding of what observable behavior/performance is problematic. When called in to a termination situation I am often provided with subjective information that may be helpful but not sufficient (anecdotes) and a lack of objective information (documented, orderly evidence). It is important to review all the information and boil it down into clear and objective performance deficiencies. Another common issue is employers who hesitate to consequence employees for their unproductive conduct towards others. This generally occurs when the employee is technically competent but difficult with peers and supervisors. Gossip, bad-mouthing the supervisor or company and abusive behavior toward others can be grounds for termination and can overshadow even the best technical performance.This type of behavior interferes with the performance of others as well as the company’s ability to create an orderly and professional workplace.

Are there technical job skills performance problems?
Are there customer service skills performance problems?
Are there peer relationship performance problems?
Are there supervisory or management relationship performance problems?
Are there ethics or honesty concerns?

Create a chronology of events

In order to evaluate the soundness of the grounds for termination it is essential to understand what interventions have been tried, how often and over what period of time. A human resource fundamental is that all performance interventions must begin with efforts to support performance changes. There are times when the lack of essential information prevents the company from moving forward until more effort has been made to support employee performance improvement. The chronology should include all of the following in the order in which they occurred.

Dated initial intervention discussions
Dated verbal and written warnings
Other supervisory interventions
Times the employee ignored or refused to follow Company policies
Times the employee ignored or refused to follow Supervisory directives
Whether performance improved or the lack of improvement
Incidents with or complaints by supervisors or coworkers
Incidents with or complaints by customers
Complaints made by the employee about their supervisor; company management; or company policies

Review written documentation

The chronology of events, noted above, should be supported by some type of written documentation which may include some or all of the following materials.

Written performance evaluations
Dated supervisory notes referring to the issues in question
Incident reports or witness statements regarding outbursts, etc.
Customer letters or complaints
Written and/or verbal complaints made by the employer about the supervisor or company management
Emails between the employee and others
Examples of substandard work product

Legal issues

Again, the relationship between an employer, employee and coworkers is complex with many variables that a disgruntled and motivated employee can craft into a “case” an attorney might be willing to take on. There are numerous Internet resources available to employers interested in managing their risks. This list covers a number of issues that might be germane.

Is the issue based in observable behavior and performance?
Did the employee lodge some kind of complaint against the company that may have prompted closer scrutiny of his or her work performance?
Is the employee part of a protected class (age, gender, race, sexual orientation)?
Has the employee reported owner/management ethics or company ethics problems?
Does the employee have relatives or allies on the job and are they long service?
Has there been a recent change in supervisor or work process for this position?
Has the employee’s immediate supervisor been professional in his or her conduct towards the employee?
Were the employee’s employment references properly checked at hiring?
Was the employee’s criminal background properly checked at hiring?
Have promises or commitments made to the employee at hiring, been honored?
Did the employee receive the proper orientation and training?
Has the employee mentioned illness as a reason for his or her poor performance?
Is there evidence or information regarding potentially dangerous behavior?

If the employee’s conduct rises to the level of “misconduct” will you be contesting an unemployment claim?

Has the company had other employment lawsuits and retained counsel in the past?

Where is the employee in his or her thinking and perspective?

Things are more straightforward when an employee shares the employer perspective that despite best efforts, he or she is not a good fit for the position. Unfortunately, many employees have difficulty accepting feedback as well as difficulty accepting responsibility for their conduct. This can result in disgruntlement which is the number one cause for terminated employees seeking counsel and helps generate the motives to energy to threaten legal action. Knowing the degree of difference between the employer’s view and the employee’s view is essential to carrying out a sound and fair termination process as well as mounting an affirmative defense should legal action be taken.

Does the employee feel he or she has been given adequate chance to perform at an acceptable level?
Is the employee angry or dissatisfied with the company?
Does the employee blame their supervisor, management, peers or customers for their performance deficiencies?
If the employee is in a negative attitude place, what would be needed to turn this attitude around and what strategies, if any, have been tried?

Planning the termination discussion

This section covers the meeting in which the employee learns that his or her employment is being terminated. With a proper process, this should not be a surprise to the employee but certainly there are individuals who don’t hear feedback until they are told the job is lost.  Though each intervention depends upon the particular situation, here are some issues to be considered.

Where should the discussion take place to ensure privacy and proximity to either the company entrance or the employee’s workstation?
Which managers should be present and who will have the primary role of conducting the meeting?
Will the managers need an opportunity to confer privately with each other before the employee’s participation in the meeting has finally concluded?
How will the performance issue be described and will the employee be given something in writing or shown something in writing to sign? (states have specific requirements for this)
Will an employment reference (other than perfunctory) be available post discharge?
Is the employee eligible for compensation in addition to their pay and unused vacation to date?
If severance pay is provided, will the employee be asked to sign a company release from liability in exchange for the cash?
If the employee is potentially dangerous, will security or law enforcement be needed?
Will the employee be serving out a “notice period?”
What is the plan for this employee at the end of the meeting – escorted, leave early, day off, or last day?
Will there be a chance on the next business day, for the employee to return or call if they have questions?

Logistics

Does the employee owe you money (loans, tuition, or equipment) or do you owe the employee money (mileage or expense reimbursement)?
When or how will company equipment be retrieved (cell phones, pagers, etc.)?
How will the termination be announced, if at all, to fellow employees and/or customers, worded?
Does the employee have personal documents on their company computer?
Does the employee have a personal password for company electronic equipment?
Does the employee have personal possessions at their desk?
Will there be a time for coworkers to say good-bye?
Who should be this employee’s company contact for additional issues, benefits, etc?

Final documentation

The last interaction with the employee should be documented and placed in the personnel file. Be sure to document any additional contact with this employee. If the employee or their attorney requests a copy of the employee’s personnel file, it should be orderly complete and ready to copy. If you have consulted with legal counsel, you should inform him or her of any contacts post termination.