Tips for handling terminations - Managing

Nation's Business, July, 1994 by Paul F. Mickey

The most seasoned business owner often turns into a white-knuckled novice when the time comes for a difficult termination. Ending an employment relationship is never easy, but some termination meetings seem certain to be particularly contentious. There are powerful reasons to avoid a misstep. Any suggestion of discrimination could lead to a lawsuit under the Civil Rights Act of 1991, which provides for jury trials to determine compensatory and punitive damages.

Every termination meeting is different, and the likelihood of challenge is ultimately governed by factors as variable as the temperaments of the people involved. But attorneys who handle employment controversies know that certain themes recur in difficult cases, and there are various ways to minimize the risk of a successful legal challenge.

Abiding by the suggestions below will not necessarily eliminate all disputes, but doing so should greatly diminish the prospect of litigation.

Avoid Surprises

Before you decide to end an employment relationship, you should first make sure that you can answer yes to these questions: Is the documentary record complete? Have company policies been followed? And most important, has the employee been made aware that the end is near?

The statutory and common-law claims that an employee may assert are the combustible material of legal disputes, but the spark that ignites them is the employee's sense of injustice at having been caught off guard and treated unfairly.

The most important suggestion an employment lawyer can offer is: Try to put yourself in the place of the employee and anticipate his or her likely reactions.

Consider issuing a clear final warning instead of proceeding with the termination. If the rules of probation are set properly--termination can occur at any time during the period, and performance Paul F. Mickey Jr chairs the Employment and Benefits Group at the law firm of Shaw Pittman, Ports & Trowbridge in Washington, D.C., and served as counsel for the employer in Harris vs. Forklift Systems Inc., the Supreme Court's recent ruling on sexual harassment. must remain satisfactory even after probation ends--then the burden of waiting to shore up your ultimate position should be well-justified.

Being certain that the employee can't claim surprise is particularly important now that nearly all employment claims are reviewed by juries. Jurors will generally try to follow a judge's instructions on technical legal issues, but they will also consider the fundamental fairness of the employer's action. If the employee wasn't made aware of your expectations and your sense that they were not being met, and if you did not give the employee an opportunity to turn the situation around, there's a good chance the jury will stretch to find a reason to hold you liable.

Examine The Rationale

Think carefully about the rationale for your decision. Recognize that human nature will lead the employee to ask for an explanation. If you try to get by with an ill-prepared or sugar-coated response in any termination discussion, you risk fueling the employee's sense of injustice. You might even use terminology that could be used in a discrimination complaint to the federal Equal Employment Opportunity Commission.

You should also remember that the concept of at-will employment doesn't get you very far. This doctrine, which is in effect in Washington, D.C., and 49 states, is based on the presumption that an individual hired without a specific term of employment may be dismissed at the will of the employer at any time for any reason. (The exception is Montana, where recent legislation requires that an employer must have cause to discharge an employee.)

On top of that presumption, however, is a rapidly growing body of employment statutes and case decisions identifying a host of reasons why an at-will employee can't be terminated. You should be prepared to articulate the legitimate, performance-based reasons for any termination before acting.

Handle Misconduct Carefully

Some of the trickiest termination meetings involve confrontations over alleged misconduct. Employers who suspect that serious policy violations or illegal acts have occurred are often in a hurry to dismiss the alleged perpetrator and perhaps set an example for other workers as well. But while firing an employee on the spot may produce a fleeting sense of satisfaction that company principles have been affirmed, it is almost never a good idea.

If misconduct is involved, lead with questions. There are at least three good reasons why this termination meeting should start with thorough questioning about the suspected misconduct.

First, the employee may have an explanation that raises questions about his or her culpability. An honest mistake, a mistaken identity, or some other fact may be involved that changes the picture dramatically. If the employee is going to offer an excuse that sounds plausible, regardless of whether it's honest or contrived, you should take it into account before you announce your final decision, even if you ultimately decide it isn't worthy of further investigation.