Have you ever been fired? Remember how it felt? When as a business owner or manager you need to fire one of your employees, your best and least dangerous approach will be to treat them the way you would want to be treated in the situation. This is probably one of the key things to remember when this dreaded task crosses your desk but there are several things to take into consideration to keep a termination from causing more problems than it is solving.
Terminations are something that most managers don’t perform frequently and as a result, oftentimes it’s not something that’s done particularly well. This is concerning because the termination of an employee can create a situation ripe with potential legal claims and other problems. Because of the potential risk involved, it’s worth putting in the time to prepare properly for the action being taken. Here are some key things that can help make for a better experience for both parties and hopefully keep you out of hot water.
Tip number one: Don’t go at it alone! Not only should there be more than one person involved in any decision to terminate but the actual termination is done best by the employee’s direct manager and a witness — HR, the owner or another manager. No single manager or individual in a company should have sole firing discretion. In order to make certain company policies have been followed, there’s not a personal bias involved and that any potential legal issues surrounding the termination have been analyzed, always have at least two management level individuals involved in the decision. One of the managers should be present to act as a witness, to help guide the conversation if necessary and for safety reasons as well.
Your employee should not be surprised by the termination. There are rare occasions when immediate termination is warranted like gross misconduct, acts of violence or theft. In the heat of a moment like that, it’s best to send an employee home for the day with pay and gather your management team to determine the best course of action. In most cases, terminations are due to ongoing poor job performance and it should have been discussed with them, given clear direction on what needs to improve and communicated what the results will be if that improvement doesn’t take place. Most importantly, all of this communication has been documented. Firing is never easy but when the employee has been made aware of issues with regards to their performance, been given the time and necessary resources to correct it and when they are aware your next step would likely be termination, the process tends to go more smoothly with less risk of legal action.
Know what you are going to say and stick to it. In other words, be very clear about the reason for the termination and don’t stray from that reason. There should be no room for question as to why the employee is being fired. Be sure to include all reasons for the termination because you can’t go back later and change your story should legal issues arise. So if it’s because of poor performance as well as a slow-down in business, state both reasons. A common question that can lead a manager to wonder off topic is an employee stating that another employee has done the same thing and they weren’t fired. If a situation like that comes up, it’s best to acknowledge the statement, inform the employee you will look into it, but then refocus the conversation back to the fact that the termination is still taking place for the reasons you have outlined.
Here’s the tricky part: You need to state things clearly but not in a cold manner. You don’t want to engage in a lengthy conversation with the employee, in fact keeping things short and sweet is best. However, you need to handle things with care and compassion at the same time. In a single moment your soon to be ex-employee has gone from being employed to wondering how they’ll pay their rent or mortgage, buy groceries, provide for their family, keep their health insurance coverage and find another job! So know that, understand that and then approach that individual and the situation in such a way that you help minimize the anxiety rather than add to it. Some of the ways you can help do that are by clearly outlining what will happen with company provided benefits and financial plans like 401(k) plans. Provide it in a written summary so they can refer to it later when they are thinking more clearly. Give their final paycheck and any monies that are due to them including earned but not paid commissions, accrued vacation time, etc. This is not the time to nickel and dime the employee. This is a time when generosity can pay off in a big way. Another benefit that can help your employee transition more smoothly is severance pay. General rule of thumb is one month for non-management level staff. Severance agreements in conjunction with severance pay provide the employer with many legal benefits but should be drafted with the assistance of legal counsel to ensure they comply with current labor laws.
If you’ve read this entire article and the whole time been thinking, “Nevada is an at-will state?” You are correct and that fact should be clearly stated in your employee handbook and the acknowledgement form indicating the employee has read the handbook. But just because employment in Nevada can be at-will doesn’t mean you can’t get sued for wrongful termination by someone who claims they were fired because of discrimination based upon a protected class (for example, age, race, disability, sex, religion). The tips above should limit that exposure.
Lastly, take into consideration when you should terminate the employee. It is best to do it early in the week versus a Thursday or Friday. This enables the employee to file for unemployment benefits and immediately begin their job search. A Friday firing provides the weekend to be upset about the termination and consider legal action.
Diana Albiniano is director of HR operations at Solutions At Work, a Reno HR consulting firm. Contact her at 775-828-7420 or Diana@MySolutionsAtWork.com.
