Terminating an employee is never easy. Whether the decision is driven by an employee’s performance problems or misconduct, the company’s economic condition or shifting organizational priorities, no one likes to deliver the termination message. Nevertheless, most employers will need to communicate this message at least once, and usually on multiple occasions, to members of their workforce. In order to make the termination meeting go as smoothly as possible, it is best to be prepared. Even where an employee is employed “at-will,” it is best to spend time carefully reviewing and planning for the termination meeting. By adopting some pre-termination protocols, employers can reduce the risk that employees will believe they were terminated for an unlawful reason and pursue litigation. With that in mind, employers should consider the following: BEFORE THE TERMINATION — CONFIRM THE REASON FOR THE TERMINATION • Review any applicable employment contracts, collective bargaining agreements or offer letters to confirm whether the employment is at-will or whether some other standards for termination apply. • Even when the employee is employed “at-will” — which means the employer can terminate the employee for any reason, or no reason, with or without cause — it is usually best to terminate for a reason related to performance, conduct or an economic reason. Having a legitimate reason for termination is helpful to avoid litigation and to foster a productive culture. • If the employee has reportedly violated a policy, review all applicable employment policies to be sure that the policy or standard the employee violated is clear and that you have adhered to any required procedures. Likewise, if the termination is tied to a performance issue, review the job description and any performance evaluations to confirm the employee has received proper notice of expectations. • Gather and review all of your documentation about the employee, including the personnel file and any notes, emails or other records. • Be sure to base your decision on information in the documentation and not on speculation or suspicion. If you do not have personal knowledge of the information in the documentation, do some due diligence to be sure that the documentation and any other information are accurate and provide you with the complete picture — including the employee’s side of the story. • Make sure the employee has had notice of and an opportunity to respond to any allegations of misconduct or poor performance and has been permitted time to improve sub-par performance. Notice of a problem and an opportunity to fix it is a workplace expectation for most employees. Ideally, an employee should not be surprised by a termination meeting. • Review your organization’s prior disciplinary history to ensure that this employee is treated consistently. • Assess if the employee is a member of a legally protected category (e.g., race, color, religion, national origin, sex, etc.), has engaged in any protected activity (e.g., recent medical leave, filed a TERMINATING AN EMPLOYEE? Things To Consider To Avoid Litigation BY MARGARET (PEG) O’BRIEN MCLANE MIDDLETON, PROFESSIONAL ASSOCIATION 12
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