“Hey Jesse, I have an employee that I need to terminate. What do I need to do”?
I can’t tell you how many times a supervisor or manager has asked me this question. Most managers aren’t sure what to do with an employee relations issue which is why they call HR Partners like myself (a great first step). Unfortunately, not everyone has an HR Partner to walk them through the process, so, I’ve put together a list of what I consider to be important questions managers should be ready to answer in an effort to mitigate potential risk.
1. “What are the facts?”
Keep emotions out of it. Too many times I see managers get caught up in the emotional aspects to objectively review the facts, which is a critical first step. If you don’t know the facts, an investigation should be conducted. (If you have an HR Business Partner or access to legal counsel, get them involved immediately. They can help with completing the investigation.)
2. “What is the company policy as it relates to the facts?”
Most companies have an employee manual or handbook containing company policies. Generally the policies outline acceptable and unacceptable behavior, consequences of such behavior, and steps to follow in order to properly address them. Stick to this!
3. “Am I being fair?”
It may take some research to find out what the company’s past practice has been regarding similar incidents. Consistency is key to avoiding litigation and claims of discrimination. Your organization may have established a practice of assigning less severe consequences than the path you are pursuing. Taking the time to establish a reasonable level of fairness is much less painful than being drug through months of litigation and depositions.
4. “Am I violating any laws?”
There are many state and federal laws designed to prevent employers from terminating employees without cause. You may think that living in an at-will state means you can term freely without repercussions. The fact is…you can’t. If the terminated employee has even the smallest hint of evidence proving you treated them differently than others, it is likely you’ll receive something from their attorney. There are many laws that prohibit discrimination based on a variety of factors. Some factors you may not even be aware of as the list of criteria continues to grow. This is another reason to involve your HR Partner at the first sign of trouble.
5. “Has the employee recently engaged in protected activity or requested an accommodation?”
A careful review should be conducted if the employee in question has recently complained about discrimination, harassment, or some other type of illegal activity. In the same vein, if the employee has requested an accommodation due to a disability, it needs to be determined what the outcome of that request was and if this played any role in considering termination. Even if it did not play a role, but it could be perceived by another party (judge) that the accommodation request and termination are tied, there is reason to take a step back and dig a little deeper.
6. “If this termination is based on poor performance, did I document and coach the employee regarding his/her performance?”
Managers should understand the importance of documenting performance regularly and communicating performance with employees so there is never a question regarding their measure of success or failure. Too many times performance discussions become that annual process HR makes you do. Performance tracking and documenting should be viewed as a constructive tool used to incent and encourage high performers as well as coach low performers to achieve success. If success is never ultimately achieved, the documentation shows a history of reasonable effort on the employer’s part to coach the employee to success. Document early and often.
7. “If I’ve tried everything else and termination is deemed necessary, is there anything that the company needs to do in order to protect itself in terms of IT systems and confidential information?”
Check with your HR Partner on how to best go about this, but the IT team can be a valuable partner in ensuring confidential company information remains confidential and the employee does not have a chance to log in and access company systems once terminated. Additionally, when the employee is collecting their personal belongings on their last day, have a company representative accompany them to ensure company files are not being gathered as part of the employee’s belongings.
8. “What should I say? Where should the conversation take place? Should it be conducted at the end of the day?”
Essentially, the logistical questions as they relate to communicating with the employee. It is ok to write a script beforehand, though it should be short & succinct. I highly recommend partnering with HR or legal counsel. A conversation via phone should only be done in extreme circumstances when a face-to-face conversation is not possible and time is of the essence. In terms of the “when”, opinions vary as there are many factors to consider, but if you’re working with an HR Partner they can provide the best guidance. Essentially, it should be done when the conversation will have minimal impact on the rest of the workforce (at the end of the day).
9. “Logistically, what do I need to do to ensure the employee has received all final pay and termination paperwork?”
California has pretty strict final pay laws, but your HR Partner should be familiar with them and the processing requirements. As of the date of this blog, there are at least three documents that must be provided to the employee at time of separation. In the case of termination (resignations are different), the employee must be paid at the time of termination and the payment must include all accrued and unused vacation or PTO in addition to all other monies owed.
10. “What do I tell the other employees?”
Most of the time employers don’t say anything and the rumors start to fly. You can avoid some of that by calling a team meeting and explaining that the company had to make a tough decision and the employee will not be returning. No details should be given. Just let them know that the employee is no longer with the organization and the company expectation is for employees to refrain from unnecessary discussions regarding the employee’s separation.
11. “What should I do with a reference check request?”
Some companies use a third party vendor to provide this information. Vendors typically include A) the fact that the employee was indeed employed, B) the dates the employee was employed and C) the employee’s job title. If you do not use a third party, I highly recommend you refrain from providing information beyond these three points.
Terminations are never easy regardless of the circumstances. But having a plan, documenting and communicating effectively are the best way to ensure a successful outcome.