As today’s historically high unemployment rates suggest, most people know someone who has endured the experience of losing a job. George Clooney’s portrayal of downsizing expert Ryan Bingham in the film Up in the Air has become something of a cultural touchstone—the employer’s paid representative coolly providing the bad news of imminent unemployment. However, the reality for most businesses—including medical practices—is that the business owner or another employee is tasked with the uncomfortable role of terminator. If the termination is handled improperly, it may give rise to a claim by the former employee against the terminating employer. In fact, wrongful termination charges filed with the United States Equal Employment Opportunity Commission (EEOC) rose last year for the seventh consecutive year.
Below are some key principles that will help facilitate terminations that bring cost-effective finality to the employment relationship.
Be Deliberative
The difference between a termination that gives rise to a postemployment dispute and a termination that brings quick closure is often in the planning. Accordingly, summary termination in response to something that just happened should be a very rare event. Even in the case where an employee’s conduct clearly justifies immediate termination, taking some time to plan and deliberate the termination is advisable.
The ability to terminate quickly and with clear legal basis starts at the beginning of the relationship. Well-thought-out employment-related documents (e.g., employment agreements, employee manual/handbook, detailed job descriptions, disciplinary memos, and evaluations) should tell the story of why the relationship ended, providing a contemporaneous record of the terms and conditions of employment, basic expectations of employee performance, the employee’s actual job performance, the reason for the termination decision, and the postemployment obligations of the employee (e.g., restrictive covenant and confidentiality) and the employer (e.g., the final paycheck and accrued vacation time).
Often, however, while the need for termination is obvious, employment-related documents will not be as clear as the employer wishes them to be. Taking the time to review your practice’s policies and procedures and the employee’s personnel file (rather than relying on what you believe the policies, procedures, and personnel file to say) before informing an employee of the decision to terminate will provide valuable context in deciding the best way to end the employment relationship.
Be Pragmatic
The employer should consider the best way to transition the outgoing employee’s tasks with minimal disruption to the business. A termination that leaves you shorthanded may be necessary in some situations, but many terminations can be eased into to mitigate disruption to practice operations. Further, an employer should consider the impact of an employee’s departure on patients and the public image of the practice. Sometimes, employment agreements will provide protection against unfair competition, the unauthorized disclosure of confidential information, and disparagement in the community. Other times, no such protections are in place. The employer should envision what the day after termination will look like before proceeding with the termination.
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.
Being direct does not mean needless dwelling on every aspect of an employee’s poor performance. The termination meeting should be a low-temperature affair. The news should be delivered in a concise and measured tone with an appreciation that many employees have tried their best and very few employees will not take the termination personally. If possible, the termination should be conducted behind closed doors with two representatives on behalf of the employer present, in case corroboration of the termination process is required in the future. Deliberations on the termination should be kept within a small circle, and details beyond the fact of the termination should only be provided on a need-to-know basis.
Careful planning, calm consideration, and involving an attorney in this process when necessary can make the difference between proper termination and wrongful termination, which can lead to a costly lawsuit and bad public appearances.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins, LLC. He may be reached at [email protected].
