The decision has been made. You are
going to terminate an employee who consistently
fails to meet performance expectations.
Problem is, you have a lingering
fear that there might be some legal ramifications
that could ensue once the
employee is let go. You've heard about
employers who have had race, gender,
age, and other discrimination suits filed
against them. And stories about back
pay, punitive damages and public embarrassment
for a company.
Most business owners, when faced
with the potential legal ramifications
associated with an employee termination
would probably prefer to do nothing and
hope that the problem goes away. Their
mantra is "I don't have time for this distraction
because I've got a business to run.
Let's ride this one out in hopes that the
employee will decide to leave."
My 15 years of experience as a human
resource practitioner has led me to the following
conclusions with respect to wrongful
terminations: The No. 1 reason
employees sue is because they perceive at
some level that you have treated them
unfairly. With this in mind, below are
some important keys to reducing the likelihood
of a wrongful termination action:
1. Use specific performance and
behavioral standards to document performance:
I hear so many business owners
talk about the importance of documenting
performance deficiencies and creating a
paper trail on a poor performer.While the
importance of this cannot be denied, an
often overlooked component is the development
of clear, unambiguous standards
in which to hold the employee accountable.
Ask yourself, "Am I really evaluating
this employee based on specific standards
contained in their job description or are
my judgments based on an unconscious
emotional desire to see them gone?" The
message here is that employees will often
respond to your emotional judgments by
seeking justice often in the form of a
discrimination claim. You can avoid this
by focusing on their job-specific deficiencies
and nothing else.
2. Listen: My experience has been
that terminated employees that feel listened
to rarely sue. It's true that what
they are telling you may be a bunch of
bunk, but let's face it we all want to be
heard and acknowledged. When you find
yourself in a termination discussion with
an employee, keep in mind that the person
you are dealing with is not a bad person
but rather a person who happens to be the
wrong fit for your company.Take the time
to ask them questions that allow them to
come to their own conclusions about their
performance deficiencies. Show some
empathy with respect to what they are
saying. Genuinely let them know that you
care about them as well as the best interests
of the company.
3. Have a legal advisor and/or outplacement
counselor available: A legal
advisor, particularly one versed in employment
law, can serve as an invaluable
resource in preventing a wrongful termination
claim. Also, you can contract with
outplacement counselors to assist a terminated
employee in making a successful
transition to new work. Numerous studies
have shown that competent legal counsel
and outplacement assistance are important
investments you can make in reducing
your legal susceptibility.
4. Offer resignation as an option:
Gordon Bethune, president and chief
executive officer of Continental Airlines,
has often said that employees who are for
whatever reason no longer a match for
your organization will "self-select" if you
give them that option. What he was
essentially saying is that it often makes
sense to give poor performers the option
of resigning. This involves helping them
come to their own conclusion that they
need to move on. Rather than trying to
force them to resign (what is referred to as
a constructive discharge which has the
same legal effect as if you terminated
them), give them the option to walk away
with their dignity and humanity. Taking
this path can mitigate much of the anger
and emotion that the affected employee
might harbor if it were a termination, and
thus reduces that chance that they will
want to sue.
Keep in mind that the legal fears associated
with employee terminations are vastly
overblown. Think about it. Just about anyone
could file a suit about something if they
desire to based on perceived discrimination
based on their age, race, weight, disability,
marital status, and on and on. What is
important to remember is that if you are
committed to doing the right thing, the very
best you can, and treated the person as you
want to be treated, the terminated employee
is likely to overlook taking legal action
and view the transition as an opportunity for
a new beginning.
Michael P. Scott is the co-founder of End
Results, a career and human resources coaching
firm located in Carson City.
He can be reached at 775.232.2951 or
endresults4u@earthlink.net.
