It is often helpful to speak with a lawyer about the defensibility of the termination from a legal standpoint. Does the employment agreement allow for termination without notice? Is a severance obligation triggered? Do certain facts give rise to concerns of a discrimination, wage, leave, tax, whistleblower, or retaliation claim? Are there continuing obligations that need to be met by the employer or enforced upon the employee? Involving a lawyer in the termination process is good insurance that termination is handled in a proper legal manner.
Understanding the outgoing employee’s immediate concerns is a constructive thought exercise that often facilitates the termination planning. Now more than ever is a challenging time to be unemployed, and reflecting on the human aspects of termination will always be helpful when preparing to deliver tough news while simultaneously seeking to respecting the dignity of the outgoing employee. Take some time to consider the practical realities of the outgoing employee. Does the employer intend on challenging unemployment? The employer will inevitably be asked, so an answer should be prepared in advance. What about severance? Does potential legal exposure make obtaining a release of claims in exchange for severance a priority? In some cases, a little generosity and compassion on the way out prevents significant trouble postemployment.
Be Direct
Employers often find themselves in trouble as a result of the desire to avoid conflict. A reluctance to be appropriately candid in job evaluations or in identifying poor performance or unacceptable conduct as it occurs raises the possibility of an outgoing employee protesting that he or she was never informed that his or her job was on the line. Frequently, in wrongful termination disputes, an employer’s silence as to poor performance or bad conduct is cast as proof that such performance or conduct was not the real reason for the termination decision. Being polite is counterproductive if it means that a judge and jury are left to wonder whether the termination decision was for legitimate or unlawful reasons.
At the time of termination, the employer is well served by a similar willingness to speak directly to the reasons for severing the relationship. An in-person meeting between a representative of the practice and the outgoing employee, followed by a written statement of what was said at the meeting, should be considered best practice. This discussion, however, should not be a dialogue. A brief statement by the terminator of the reason or reasons for the termination, the terms of separation, and a statement of best wishes will suffice in most situations.
