Start Your FREE Membership NOW
 Discover Proven Ways to Be a Better Law Office Manager
 Get Our Weekly eNewsletter, Law Office Manager Bulletin,
    and MUCH MORE
 Absolutely NO Risk or Obligation on Your Part -- It's FREE!
EMAIL ADDRESS



Upgrade to Premium Membership NOW for Just $90!
Get 3 Months of Full Premium Membership Access
Includes Our Monthly Newsletter, Office Toolbox, Policy Center, and Archives
And MUCH MORE!
TERMINATIONS

Seven guides for a safe and somewhat pleasant firing

Firing is the most dangerous action a manager ever takes.

“Yet almost everybody does it poorly,” says Joseph Godwin, a management consultant with F&H Solutions Group, a human resources consulting firm in Asheville, NC.

Any fired employee is depressed and fearful of the future—and not averse to calling an attorney. Every manager needs to know how to fire without asking for trouble.

Godwin provides these seven guides.

1. Make it a two-person decision

Don’t fire alone. Get somebody else to participate in the decision.

“There should never be an occasion when one person has the authority to fire,” Godwin says. Somebody else should always review the documentation and have a voice in what happens.

The manager can’t help but look at the problem with tunnel vision. The staffer has been a thorn in the side, and it’s only human to focus on the negative and aggravating things that person has been doing. It’s logical to think “we have to get rid of this person.”

And surprisingly, he says, “some people actually like to fire.” They “get psyched up” about doing it and start looking for ways to demonize the person. And in the process they ignore the other things that need to be taken into consideration.

That other person, however, isn’t mad about anything and will give the situation a fair evaluation.

2. Don’t fire anybody on the spot

Unless it’s a situation involving violence or immediate danger, never fire anybody on the spot. Send the staffer home if necessary, but don’t act without analyzing the dangers the office could be getting into.

Talk with that second review person and think it through: “If we fire this person, what could we get sued over?”

Maybe other employees have been guilty of the same transgression and not been fired. Or maybe the manager is fed up with the staffer’s constant tardiness while the immediate supervisor says “but she was never late here.”

Be aware too that often there is a story behind the story. Godwin gives the example of a grocery store clerk who was fired on the spot for not helping a blind customer. The customer had asked him to help find something and he had refused to do so.

It turned out, however, that the man was mentally challenged and couldn’t help the customer because he had been told not to leave his post. He got his job back.

3. Go down two check lists

For safety, follow two check-off lists with every firing.

The first is the simple part. It spells out the standard paperwork and clean-up things such as checking the documentation, collecting office property, verifying vacation time due, and so on.

With all that in writing, the manager can say, “I went through this list and everything was done according to office procedure.”

The second list is not so simple, and it’s the one that really counts.

It helps the office answer the big question of “what conditions could create an issue with this termination, and what could the consequences be?”

There are four essential areas to look at.

(a) Does this person have some protected status such as gender or age or ethnicity?

If so, ask an important question: “In the imagination of some plaintiff’s attorney, can this termination be connected to that protected status?”

Suppose the staffer is the only black employee in a department.

If the office has good documentation showing lack of performance, there’s no problem.

But if the department has a new supervisor who is getting rid of the nonproductive staff and who has no personal knowledge of the staffer’s performance, the office could have a hard time showing the new supervisor’s decision wasn’t influenced by race.

(b) What has the office done in similar situations with other staff? Has it been consistent in following the policies at question here?

Whatever the issue at hand—attendance, productivity level, and so on—the office needs to have policies laying out what is expected, and it needs to be able to show that any other employees with similar issues were also terminated.

(c) Are there extenuating circumstances? Look for the little mistakes. Maybe the staffer was out for several days and didn’t get asked about FMLA and the time off was counted against the attendance.

(d) Has the staffer exercised any legal right, such as taking FMLA leave or filing a workers’ comp or harassment claim? If so, there’s a risk of getting sued for retaliation.

4. Don’t take aim at anybody’s halo

That last area—exercising some right such as taking FMLA leave or making a complaint of sexual harassment—warrants special attention, Godwin says.

Managers need to understand that nothing protects an employee from something that would happen anyway. If somebody is caught stealing money, firing is expected. There’s no need to worry about a claim of retaliation for taking FMLA leave.

But absent that, be careful. People who have exercised a right wear a sort of halo for a while. To fire too soon is to invite a retaliation claim.

If someone comes back from leave and now is working slower, give that person time to get up to speed. Or if a nonproductive staffer takes leave and while he’s out the office realizes what a drain he’s been, don’t fire just yet. “Take him back. It’s not his fault that the supervisor didn’t get rid of him earlier,” Godwin says.

He adds that it’s all but impossible to make the office 100% safe from an employment law complaint once someone is fired. In fact, most such complaints come about after the person leaves. The only time the office is safe is when the firing is for a clear-cut offense such as theft or violence.

5. Be kind and be clear

During the firing conversation, “be brief but not hurried,” Godwin says. Be factual but not unkind. “Don’t beat the person over the head with what he did wrong,” he explains. Just say, “we have to end your employment and here’s why.”

Also be clear. Don’t let the staffer leave not knowing exactly why the firing is taking place.

Don’t argue. Make it clear that the office has investigated and isn’t interested in excuses.

Likewise, don’t say “there’s nothing personal here.” It may not be personal to the manager, but it’s personal to the person being fired.

Be courteous and show sympathy. If the staffer has been marginal for five years and is being fired for the last straw, talk about the last straw but don’t go over the last five years.

6. Pay up whatever might be owed

Give the fired employee every benefit the office could possibly owe.

Unused vacation time is an example. Some states don’t require that it be paid while others say yes, it’s earned wages and is owed to the employee.

Whatever the law, go the extra mile and pay it, Godwin says. Getting fired puts people in a shaky emotional state. It’s absurd to antagonize somebody in that condition with “we’re going to fire you, and oh by the way, we’re going to send you out without the vacation pay you think you’ve earned.”

Make sure the staffer leaves thinking the office has been fair. If there’s an odious policy that says the office doesn’t pay vacation when somebody is fired, Godwin says, “change it. It’s dumb. It’s asking for trouble.”

The same is true for things such as earned commissions that aren’t due until after the firing date. Pay them. That’s money earned.

Don’t let anybody go out feeling shortchanged.

Explain the COBRA benefits and retirement account options.

As for severance pay, set a policy on how much gets paid for various reasons for leaving. For non-management positions, a good and acceptable severance package is one month’s salary

Hand over the final paycheck right there. “Make it a nice neat package,” Godwin says. Leave no questions unanswered, and don’t make the employee wait for anything.

7. References: don’t go beyond flat

What about references?

Pray that the staffer finds a new job fast and gets on with life, Godwin says. The alternative is a former employee sitting around getting madder every day and badmouthing the office.

The safest approach is to stay away from anything negative. Verify the job title and dates of employment and stop there. “Anything else can turn subjective,” he says.

The reason for the firing may not even affect the next job. Suppose somebody is fired for bad attendance because of child care issues. The child care may now be resolved, so telling a potential employer about it isn’t going to do anybody any good.

If the new employer asks for more than the basics and if the office wants to help that person get a job, ask for the request in writing, Godwin says.

There’s no need to answer every question on the request. Just answer as positively as possible, perhaps that the person is knowledgeable about billing and works well with colleagues.

Also, he says, if the office sends a written reference to the new employer, it should send a copy to the employee.


Editor’s picks:

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


Three errors that can cause wrongful termination problems

3 proven ways to make firing easier on everyone


Close

EMAIL ADDRESS


PASSWORD
EMAIL ADDRESS

FIRST NAME

LAST NAME

TITLE

COMPANY

PHONE

Try Premium Membership

(-0)