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COMPLIANCE

Do you follow these 7 rules when you fire an employee?

If it’s employment at will—and for most employers it is—the office can fire whomever it wants, whenever it wants, and without any reason at all.

But it’s not quite that easy. With any termination, emotions take over. Besides the crushed ego, there is the cold hard fact that the office is essentially taking away a person’s livelihood. And all of a sudden people start thinking they have a right to the job.

Even if the termination is well within the requirements of the law, the fact remains that anybody can file a lawsuit. So for safety’s sake, and out of consideration for the often devastated employee, go beyond what the law requires.

Rule #1: Give a truthful reason

Perhaps the most important element of a safe termination is giving a valid reason for the firing.

Hearing “you’re fired” and not knowing why will send almost anyone down to the EEOC to complain. And it’s not easy to defend the firing of someone who had no idea his or her performance was below standard.

Similarly, while it’s best to be somewhat gentle, don’t skirt the truth in an effort to make the conversation easier. Do that and you may be making it easier for the employee to sue.

For instance, don’t tell an employee there isn’t enough work to support the position when it’s likely the employee can prove otherwise.

Be frank if a person is being fired for poor performance: “As you know, we’ve discussed this and asked you to improve. We don’t feel you have improved enough so we are going to have to let you go.”

Be equally honest if it’s a serious matter such as theft: “We think you are stealing and we are going to terminate you immediately.”

Rule #2: Provide a truthful separation notice, too

Be equally truthful with what’s documented on the separation notice employees take to the unemployment office to see if they qualify for unemployment compensation.

Although it may be tempting to help the employee qualify by changing the reason they were fired, it is something you should never do.

Make the letter simple, short, and truthful. All it needs to do is explain clearly why the person was fired and when the termination took effect.

Rule #3: Avoid progressive discipline

Don’t have a policy of giving three warnings.

Similarly, don’t call the office’s discipline method “progressive discipline.”

Follow the practice of giving warnings and helping people improve, but don’t make it a policy. That type of policy all but tells staff they get three free strikes before they can be fired.

What’s more, when an offense is serious, the office may need to fire someone immediately and without warning.

Rule #4: Keep the matter private

Then there’s the question of what to tell the other staff.

All anybody needs to know is that the employee who was terminated no long works there. End of story.

Suppose someone is fired for stealing or for drug use.

This should also remain confidential unless there is some compelling reason to explain. Unfortunately, news like this often gets disclosed inadvertently when a manager confides in a supervisor who then confides in someone else. Pretty soon the entire office knows and is hit with a slander suit.

If someone asks what happened, just repeat the initial announcement. Don’t give the reason even if a plethora of rumors are sweeping through the office.

Instead, address the source of the rumors. Say “I don’t want to hear any more gossip about this person. They have been terminated and that’s all anyone needs to know.”

Rule #5: Be consistent

Consistency counts, too.

Before firing someone, make sure other people in similar situations have also been fired. Ask “has this happened before?” and if so, “how was disciplinary action handled in that situation?”

There may be a good reason, such as a change in the employee handbook, but it must be clear and defendable.

And that works both ways. Don’t excuse behavior that previously resulted in the firing of a former employee. Do that and the next person who gets fired for the same thing will point to it as favoritism.

Consistency can get especially sticky with employees in protected categories. An employee may complain of age discrimination, for instance, if they are fired at 50 while a 25-year-old who committed the same infraction is not.

And don’t expect to defend the action by saying the younger employee is irreplaceable. It’s still discrimination.

Rule #6: Pair severance with a no-sue covenant

Then there’s the question of whether to give severance pay.

A severance package can soften the blow but should only be given in exchange for an agreement not to sue or bring any claim against the office.

Rule #7: Be prepared to prove your answer to the telling question

Finally, maintain a paper trail.

Document every warning and show that the employee knew what to do, what not to do, and what would happen if it wasn’t done right.

The litmus test will be the employee’s answer to the EEOC’s question of “were you told that you would lose your job if you did (or didn’t do) that again?”

Related reading:
3 proven ways to make firing easier on everyone
12 signs you are about to lose your job
Get ready to improve and get ready to move

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