You have a problem employee, and you’ve decided it’s time to part ways. Maybe he or she is a low performer who has showed no signs of growth or improvement, or perhaps there’s an attitude problem that is affecting the workplace for others.
No matter the reason, termination is not an easy or enjoyable task. But it is one that must be handled the right way, and it should be done thoughtfully and with compassion.
So, what’s the first step?
An understanding of labor and employment laws is crucial, of course, but you should also start first by appreciating the benefits of handling the perceptions and feelings of the employee being terminated.
Know your options. Many people confuse the difference between “right-to-work” and “employment-at-will.” Many employers seem to think, “This as a right to work state and I’ll fire whoever I want, for whatever reason I want.”
The problem with that mentality is that “right-to-work” relates to the National Labor Relations Act of 1935. It gives employees the right to work in an organization without joining their established labor union.
The employment-at-will doctrine applies when an employee works for an employer without a written contract, either individual or through organized labor. This is the situation for most employment relationships.
In the United States, employees without a written employment contract generally can be fired for any reason.
There are three exceptions to this:
- Public-policy exception – Under this category, an employee is wrongfully discharged when termination is against an explicit, well-established public policy of the state. For example, in most states, an employer cannot terminate an employee for filing a worker’s compensation claim after being injured on the job, or for refusing to break the law at the request of the employer. The public-policy exception is the most widely accepted exception, recognized in 43 of 50 states.
- Implied-contract exception – This can be somewhat tricky. The implied contract exception is applied when an implied contract is formed between employer and employee, even though no expressed, written instrument regarding the employment relationship exists. An employer may make oral or written representation to employees regarding job security. For example, contents in employee handbooks could create an implied contract. This exception is recognized in 38 of the 50 states.
- Covenant-of-good-faith exception – Recognized by 11 states, this exception can seem even more clouded. It has been interpreted to mean either that employer personnel decisions are subject to a just cause standard or that termination made in bad faith or motivated by malice are prohibited. For example, several years ago, a Supreme Court of Nevada found that Kmart terminated an employee to avoid having to pay him retirement benefits, which constitutes bad faith.
You need to know the law. But that’s just the start. At some point, you must have the dreaded conversation. One thing to keep in mind is that correct firing decisions are almost always in the best interest of the individual and the remaining team in your business. Harvard Business Review offers a helpful walk-through of issues you should consider, but below is a summary of some key points.
Don’t drag your feet
Delaying the inevitable is in no one’s best interest. Jodi Glickman, founder of communication consulting firm, Great on The Job, notes that when bad outweighs the good and when an employee is causing more problems than solving them, it’s time for that employee to go.
Firing should be the final step in a fair and transparent process. There should be a trail of paperwork to support your decision. Rebecca Knight, author of The Right Way to Fire Someone, points out that if you’re still having trouble mustering the courage to act, think about your team’s wellbeing.
Make HR your ally
Human Resources professionals are the experts in this area, since they can help you decide if your legal department should get involved. But remember, you’re looking for guidance, not permission.
If members of the HR team are available to take part in the termination meeting, they can serve as witnesses to the meeting, in case allegations are later made. They can also facilitate this difficult conversation, if needed. Most importantly, HR might alert you that the timing of a termination may need to be altered.
An example offered by Knight is the employee’s pension may vest on Wednesday, so don’t fire them the day before because that could be a potential discrimination case.
Keep it short
Be straightforward and to the point. There is no value in stringing the conversation out and sending a potentially mixed message. Begin with a short and to-the-point statement, such as “I have some bad news for you. Today is your last day here.”
You want to state the reason for termination in one simple sentence, for example – “We’re letting you go because you didn’t meet your sales target” or “You have not learned our new process quickly enough.”
Glickman points out that using past tense helps to avoid arguments about second chances. If the employee tries to argue, it’s important not to get caught up in responding.
Finally, you should say something like, “I’m sorry that the situation has gotten to this point,” because it implies that the responsibility lies squarely on the individual.
As difficult as a termination may be for you, it can be traumatic for the employee being fired. So, a little compassion can go a long way toward making the conversation easier and averting a potential retaliation by the terminated individual. Although you may be completely in the right, your company does not want to spend time on legal actions.
Besides, it’s the right thing to do. If you think this is a good person with potential talent and abilities in a different environment, you could offer to provide a reference. You may go as far as offer to make introductions to help him or her network in the search for something new.
Talk to your team
This is often done in group a setting, allowing you to get the same message out to everyone quickly. The remaining team may begin to do some soul-searching and wonder if this is a downsizing effort and will they be next? Productivity will likely take a hit, as the remaining team members will be distracted.
So, gather your team and make your message short and to the point. When a colleague is let go, rumors abound. So, get out in front of the gossip by assuring them that the fired person was let go with just cause, and the organization is not eliminating roles. You don’t want to go into detail about the reason for the termination.
Following these steps and recommendations isn’t necessarily going to make a messy situation any easier, but it is your best chance to do it right. Planning and compassion are perhaps the best allies that you have in this difficult task.
David Smith, PhD, is the president and CEO of EASI•Consult®. EASI•Consult works with Fortune 500 companies, government agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI•Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.