How to Promote Dignity and Manage Risk When Terminating Employment
Anthony worked in Research for 15 years. In recent years, his performance started to slip and last week his manager decided to let him go.
After lunch on a Monday, the manager summoned Anthony and a junior HR rep into his office in the middle of the floor. There was no script. Anthony’s manager was nervous. He said things like “it’s not a good fit” and we “just need some new blood around here.” Anthony asked for an explanation, but the boss simply replied, “You are no longer what we are looking for in Research.”
At the end of the meeting, the HR rep handed the employee an envelope and said, “Everything you need for your transition is in there. There’s a security officer waiting outside. Because you had access to sensitive information, the officer will walk you to your desk where you can get your car keys, but nothing else. He’ll walk you to the parking garage and we’ll send you your things.”
How would you feel if you suddenly learned you lost your job? And, how would you feel if, after 15 years, a security officer paraded you out of your office and past your colleagues for the last time?
Kind of like when your girlfriend not only broke up with you, but also informed you she was marrying your best friend . . . on your birthday . . . and invited all your mutual friends to attend.
Some suggest that a terminated employee’s emotional response mirrors the stages of grief commonly associated with coping with death: denial, anger, bargaining, depression, acceptance and hope. Others believe it depends upon a huge number of variables, including the events leading to the termination of employment, the re-employability of the individual, how much the employee valued or needed the job, personal and family financial wellness, and/or how the company and manager treated the employee during employment.
In fact, no two situations are alike. And terminating employment can be a messy, emotional and complicated business. Whether it’s an inexperienced manager or lack of planning, there are plenty of legal and reputational landmines.
On the employment law side, what if the manager can’t present clear performance reasons supporting the termination of employment? And with no performance explanation, what if there are differences in the manager’s and subordinate’s protected categories (e.g., age, gender, race, sexual orientation, disability)? Or, what if the employee previously raised a compliance issue or claims the manager engaged in misconduct? One thing is for certain, whether you tender a voluntary or involuntary termination of employment, mishandling the exit process fuels the anger that inspires litigation.
Moreover, in these days of shallow talent pools, you may find yourself revisiting a terminated employee at some point in the future, particularly if it’s a reduction-in-force or redundancy. Alternatively, the hiring manager or HR could discover later that the terminated employee actually was not at the heart of a performance issue. What if the company finds itself wanting that person back, or recruiting a good friend or close former colleague of that employee who is a rock star?
What steps can you take as a Human Resources professional to manage the litigation and reputational risk of a termination of employment? Among other things:
- Prepare yourself. EVERY. TIME. That one time you expect things will go well, they most definitely won’t. Have a consistent checklist, process, documents, communication plan, timing, and location for each and every termination meeting.
- Seek guidance from your employment lawyer. It’s a challenging position for your lawyer when he/she learns of the termination after the fact. As they say, “You can’t unring the bell.” Always expect and be prepared with clear documentation, reasoning, and a communication plan/script you can vet with the employment lawyer before the termination discussion. Moreover, there may be nuances or similarities with other matters you about which you may not be familiar. The Company’s lawyer may know more background facts or history than you realize.
- Coordinate with Compliance. It’s also critical to confirm that the employee hasn’t made a complaint or isn’t a witness in an ongoing compliance or other misconduct investigation. Even the appearance of retaliation against a potential whistleblower or cooperating witness is one of the most common traps for the unwary HR Business Partner.
- Prepare the manager. Counsel the manager on how, when and where to deliver the message, as well as the content. Managers should say as little as possible, preferably heading off any protracted discussions about examples of poor or non-performance. Allow the manager to leave the room so you can function as the good cop, and be the conduit for describing how the company is going to provide cushion for the transition.
- Avoid surprise. Most termination decisions are judgment calls made upon a combination of experiences and predictions of future success. Appropriately ensure that the documented record of performance or misconduct objectively supports the decision to end employment. Performance reviews, documentation, reminders, performance plans, final warning and termination memorandum all serve a purpose, but don’t feel tied down. Do everything possible to avoid the shock or at least be able to demonstrate objectively that it shouldn’t be a shock
- Have a script, but don’t read from it. Collaborate with the manager on a clear, concise explanation, clearly supported by documentation. Avoid buzzwords like we need “new blood” (age) or we need a “better fit” (race, ethnicity, gender, sexual orientation). Be crystal clear about the external message, including what you will and will not discuss, and plans for the team in the interim and long-term. Show sensitivity without apology. Be polite and sympathetic, but firm and conclusory.
- Who is in the room and why? It’s common practice to have a witness in the room for an termination of employment. It will feel awkward for everyone and it may make the employee feel ambushed. That’s why it’s critical to explain the role of the witness as a support mechanism for the transition.
- Avoid the “perp walk” as much as possible. Honor privacy. Where you do it matters; and, if possible, allow the employee to say goodbye or come back.
- But protect security and be prepared to protect the company and other employees. Lock computer access in advance, but don’t have security looming until the employee has access to sensitive documents. For those employees in highly-sensitive areas with access to proprietary information or trade secrets, explain that you will try to limit visibility but that the company has a standard practice that it must escort the employee off the site.
- Timing is everything. Terminations of employment are best planned for the beginning or preferably end of the day, not on a Friday when the employee can feel isolated from asking clarifying questions. Don’t do it when employees are filing in or leaving.
- Have the severance and benefits package ready to go. But don’t dive into the details unless the employee is demonstrably interested and open to them. Suggest a follow up phone call to review the details after the employee has recovered emotionally, and a quiet, off-hours time for the employee to collect belongings.
- Be consistent and debrief! Your process may be subject to litigation discovery, so you even if you don’t have a structured termination process, you should routinely calibrate practices and policies. Conduct a lessons-learned session and explore potential process improvements.
Indeed, one of the most gratifying things to hear is that the departing employee felt treated respectfully and with dignity. Satisfying, too, is learning that a manager/client (who was likely feeling greater stress than you!) felt well-supported and guided during a difficult process.
Taking someone’s job is truly only of the most heart-wrenching experiences in the career of a human resources professional. And you may be asked to do it often. No one is asking the Human Resources professional to function like a robot during the exit process. Indeed, providing understanding, sympathy and process guidance can actually offer the company tremendous value with managing litigation and reputational risk.
This blog is for educational and informational purposes only, and is not, nor is it intended to be, legal advice. Any use of this blog’s content, including but not limited to by contacting us by any method, does not create an attorney-client relationship. You should consult an attorney for advice regarding your individual situation. Every legal matter, case or issue is different, and any prior results described in this blog does not guarantee a similar outcome in future matters, cases or issues.
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