Massachusetts Employment Law Letter

Breaking up is hard to do: basic guidelines for terminating an employee

In these difficult economic times, terminating an employee is one of the most challenging facets of a manager’s job and, perhaps, the one they hate the most.  After all, the employment relationship is a human relationship, and it is the very human nature of that relationship that often impairs good judgment, creating the potential for future liability. Employees who are being terminated frequently refuse to take any personal responsibility and often sue employers for discrimination because they believe that their protected characteristic was the real reason behind the negative outcome.  Therefore, it is important that you appreciate that an employee termination can be the start of a lawsuit if it is not handled properly.  The following tips can help you avoid costly litigation and future headaches.

Don’t rush it

If you take away anything from this article, remember . . . no termination decision has to be made on the spot.  Do not act in the heat of the moment.  If the employee needs to leave the workplace immediately, suspend him or her, pending investigation and consideration of all of the facts.  That gives you a chance to make sure you are comfortable with the decision, and gives you time to collect documentation and prepare to have the termination conversation.

Be a detective

Make sure you know all of the facts, including the “who, what, when, where, and why” of the particular situation that prompted the termination decision.  Talk to witnesses and get written statements if necessary.  Ask the witnesses to sign and date these written statements.  Write down the information you acquire so you will have it handy later.

Is it fair?

Is the termination decision a fair one?  Employees are more apt to accept even undesirable outcomes if they believe the processes used to arrive at those results are fair.  For example, consider the following:  Did the employee know about the policy that he or she violated in advance?  Have you previously communicated your disciplinary policy?  Has the employee received discipline for the same behaviors in the past?  Have you previously informed the employee that you were dissatisfied with his or her work performance?  When was the last time that the employee received discipline?  Your decision may appear unfair to a jury if, for instance, you are terminating an employee for an infraction of the attendance policy when the first infraction happened years ago.

Keep those emotions in check!

Approach the termination with a cool head.  It’s obviously easier to stay calm when you remove yourself from the heat of the moment.  Don’t respond to provocations, and don’t engage in an argument with the employee.  It is pointless to try to “win” an argument, and by speaking spontaneously, you may provide the employee with ammunition for litigation.  At times, it may be advisable to have another manager, who is further removed from the immediate situation, speak with the employee.  Because termination interviews are fraught with emotion, you may also want to include an observer.  An observer may be helpful in diffusing any potentially volatile situations.  One person can communicate the decision while the other takes notes to document the meeting.

Don’t delay the inevitable

Once you’ve taken your time and made the decision to terminate, act on it.  Granted, at times it is difficult to immediately replace an employee.  However, putting the termination conversation off often makes the reasons for your decision seem less valid.  Indeed, it is very difficult to support the employer’s assertion that an employee’s misconduct justified termination if the employer let him or her continue to work, for example, through the holidays because it was a busy season.

Be honest

As much as you personally like the employee, you must be truthful about the reasons for termination at the risk of hurting his or her feelings.  Otherwise, you are being unfair.  Furthermore, while you may be tempted to soften the blow by making up vague excuses, this may look like a pretext or cover-up for discrimination if the employee decides to pursue a discrimination claim against you.  Comments such as “You’re not a good fit for the organization” are ambiguous, and while you may be trying to be kind, you are also damaging your ability to claim later that the employee’s misconduct or poor performance was the real reason.

Value discretion 

Keep any information concerning the termination and the facts leading up to the termination on a “Need to Know” basis.  Don’t participate in gossip, otherwise, you may open yourself up to a defamation or invasion of privacy claim.  What’s more, remember the telephone game?  Others may misconstrue what you say and leave you looking like the bad guy.

Give the employee a chance to be heard

Even if you’ve already made your mind up, allow the employee to respond to the allegations and make note of their statements.  Litigation usually arises when an employee feels he or she has been treated unfairly, and nothing appears more unfair than a termination where the employee did not have an opportunity to tell his or her side of the story.

Make sure you are consistent

Check to make sure that you are not playing favorites with your employees.  Try not to make exceptions “just for this one person.”  If the conduct at issue was not sufficient to terminate another employee at some other time, be ready to come up with lots of good reasons why this employee is being treated differently.  Inconsistent treatment of employees, particularly those in a “protected class,” greatly increases the likelihood of successful discrimination claims.

If it is not written down, it didn’t happen!

When you investigate and when you communicate with the employee, make sure you take clear, coherent notes.  Type the notes if you have poor handwriting and date them.  Keep the notes clean and professional, and don’t say anything that might be embarrassing or hard to explain.  Write down everything that the employee says, as accurately as possible.  Anything the employee says in the termination interview can be used against him or her if he or she pursues a lawsuit.

Consult your labor and employment attorneys

Just as it is more efficient to consult a physician during preventative stages, it is also more efficient to call on your labor and employment attorneys as counselors who can help you prevent litigation in the first place, rather than to call on them as litigators who help you clean up the mess after the fact.  If you are concerned about risk, spend a little bit of time on the phone with your lawyer to evaluate your decision before you actually conduct the termination.  Be brutally honest about the facts and be open to changing course if your lawyer thinks termination is too risky at this point.  Attorneys can spot the danger zones and coach you on how to phrase specific communications in a way that will greatly reduce the risk of litigation.

Article By: Jasmin M. Rojas, Esq.
Reprinted from the November 2012 issue of the Massachusetts Employment Law Letter.

Jasmin Rojas is an Associate at the firm of Skoler, Abbott & Presser, P.C.  Jasmin can be reached at (413) 737-4753 or jrojas@skoler-abbott.com.