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The complete guide to terminating an employee, remaining human, and protecting your company

(BUSINESS NEWS) Employee terminations are never a pleasant task, but they are a necessary one.

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It’s part of the job

Let’s face it: no one likes firing an employee, but we all know that it has to be done when the circumstances call for it. When that time comes, how do we do so effectively and in a way that preserves both the integrity and safety of the company with the dignity of the soon-to-be former employee?

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Make your case

Before you consider terminating an employee, study up. Make certain that you’re familiar with your employee handbook, your company policies, and applicable employment laws. This isn’t an act that you should do alone if you can avoid doing so. Reviewing your firm’s employment policies and their interaction with federal, state, and local laws with a qualified employment lawyer and/or your human resources staff can save you much time and heartache down the road.

While D.L. Roth may have once said, “You know you’ve made it when you can spell subpoena without thinking about it,” protracted battles with ex-employees can be expensive and time-consuming. This is true even of at-will employees in right-to-work states, such as Texas. An at-will employee is one whose employment can be ended for any reason, or no reason, as long as it is not an illegal reason.

Age discrimination? Yep, illegal reason. Gender discrimination? Same story, unless gender is a Bona-Fide Occupational Qualification (BFOQ). Terminated for absenteeism during a USERRA or FMLA leave? Probably, but many shades of grey exist there. Even the prima facie appearance of a termination decision based on a prohibited reason can be time consuming to defend against.

So, does this mean that you should avoid terminating any employees who may fall into a protected class? Not at all.

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After the review of your company policies, review the employee’s disciplinary history. The documentation that exists in their employee file will be the basis for which you make your decision for which you can defend yourself, if the need arises.

You’re looking for the point where the employee’s behavior or lack of performance have run afoul of company policy and can cite that violation of expected standards to them as a way to defend your decision.

In law school, there’s a way of thinking about cases popularly known as the “IRAC” method: Issue, Rule, Application, Conclusion. You can apply that here: the employee’s behavior is the issue, and the company policy is the rule, with application and conclusion being next steps in the termination process.

Documentation is king

If policy changes or ongoing employee performance problems haven’t been documented in writing, consider whether or not now is the right time to terminate the employee. It’s an old maxim — without documentation, it didn’t happen. If you or your front-line managers aren’t in the habit of documenting employee discipline and performance concerns in a timely fashion, you need to address that first.

It doesn’t look good if you’re making the claim that your employee has had Problem X for the past six months, but all of the disciplinary documentation you’ve provided them is from only the past week, in a last minute effort to throw together something. It’s better to take a step back and clean up your processes first. This is also a good point to review what remediation steps you’ve offered an employee to improve their performance, especially if the problem is an ongoing one.

Remember, you’re not just taking care of a performance or behavior issue at your office. You’re also gravely impacting the entirety of someone’s life and livelihood.

That gravity doesn’t mean that you shouldn’t act, but it does mean that you need to be fair and just throughout the process.

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State your case

Once a review of company policy, the employee’s performance and behavioral history, and any remediative steps have justified the decision to terminate employment, it’s time to schedule the meeting. If your company has an HR business partner, have them there; you’re doing the firing, though. It’s your decision, and HR is there to handle the exiting process for the employee, with the inevitable questions that will arise, as well as to serve as witness in case of litigation later.

Experts differ on whether people should be fired early in the week or late in the week, and whether or not the meeting should be held in your office or the employee’s private workspace, if they have one. In reality, these decisions vary by workspace. Take into account that you want to treat the employee with dignity and privacy as you transition.

The meeting should be direct and to the point; fifteen minutes is a long time when there’s only one message being delivered, and a prolonged conversation isn’t going to change anyone’s minds about the outcome.

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When the employee sits down, they well may wonder why HR is there as well. It’s best to acknowledge their presence in the room, and let the employee know that you’re all there today to review the status of their employment. When transitioning to the discussion of performance or behavior, be direct and clear about the types of problems that have occurred, the length of time, severity of the behaviors, and any remediative steps that have been provided. Doing so allows the employee to understand that you have been dealing with ongoing concerns for some time that have not improved, or that their behavior, even if only a one time occurrence, was so severe that you had to address it in this fashion.

After the review of performance, you’ve now got to tell the employee that, based on this behavior, or lack of improvement, their employment has been terminated, effective today.

Be prepared to experience a gamut of emotions from the employee: shock, anger, denial, disbelief, bargaining for another chance.

You may well be empathetic to the employee’s circumstance; I know that I’ve been when in this position. However, empathy aside, now is the time for what I refer to as “kind clarity”. You’re using precise language, so as not to confuse the employee or to give them the false impression that there’s another avenue at this point. While not belaboring the point of every violation of rules that they committed, you’re also remaining steadfast to their performance issues. It’s natural, when faced with a strong emotional reaction from the employee, to want to minimize the problems that existed that led to their termination.

While it’s tempting to want to console an upset employee, overly kind words that seem dismissive of their problem today may be used as evidence tomorrow. You can go into broken record mode when an employee disagrees with the decision: “I acknowledge your position, but the decision is final.” And, while it’s understandable that you’d possibly be emotional as well, don’t say that this decision is difficult for you. That’s not going to make anyone in the room feel better, most especially the now ex-employee.

Once the termination has been delivered, utilize the skills of your HR business partner, if possible, to answer the expected questions about benefits, pay, references, unemployment claims, etc. If your company is upscaling and doesn’t have a dedicated HR department, think about all of the questions that you would have in a similar circumstance, and be prepared to answer them.

Provide the employee with a point of contact for any questions or needs that come up after the meeting is ended, and make certain that that point of contact provides them with the same high level of customer service that you would expect for any employee.

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Transition forward

At the conclusion of the meeting, escort your former employee to pick up their essential belongings and then directly off property. Even for employees for whom there is no expected risk of becoming violent or disruptive in the workplace, you want to protect your team against any unnecessary distraction of a visibly upset colleague who may have been popular among them.

For employees who have a large amount of personal property, allowing them to come back after hours when you or your HR partner can observe them packing is kinder than asking them to do it in front of an audience of their former colleagues. You’ll also want to provide notice of the termination to your IT department to have e-mail and other proprietary technology shut off at the time of termination. This avoids the risk of the former employee sending out any messaging that would be harmful to the company as a “parting gift”.

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After the employee has been terminated, the work goes on. You’ll want to maintain the employee’s privacy and confidentiality as you transition their projects to other team members and, eventually, interview for their replacement. Maintaining the same levels of empathy and reassurance with them as they transition without their co-worker, as well as rolling up your sleeves to take on some of the additional workload if necessary, will ensure that the mission goes forward.

#FireRight

Roger is a Staff Writer at The American Genius and holds two Master's degrees, one in Education Leadership and another in Leadership Studies. In his spare time away from researching leadership retention and communication styles, he loves to watch baseball, especially the Red Sox!

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Opinion Editorials

AT&T hit with age discrimination lawsuit over using the word “tenured”

(EDITORIAL) 78% of workers are victims of age discrimination. As awareness arises, lawsuits show what may constitute discrimination, including verbiage.

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Older man at cafe representing age discrimination

According to the AARP, 78% of older workers have seen or experienced age discrimination in the workplace. As awareness of ageism increases, lawsuits that allege age bias can help employers understand what constitutes discrimination. A recent case from the U.S. Court of Appeals for the Fifth Circuit, Smith v. AT&T Mobility Services, L.L.C., No. 21-20366 (5th Cir. May 17, 2022), should give employers pause about using other words that could potentially be a euphemism for “older worker.”

What the lawsuit was about

Smith, a customer service representative at AT&T, alleged that he was denied a promotion because of his age. His manager told him that she was not going to hire any tenured employees. The manager wanted innovative employees in the management positions. Smith took this to mean that he was being denied the promotion because of his age. He sued under the Age Discrimination in Employment Act and Texas law.

The district court found that Smith failed to exhaust his administrative remedies as to one claim and failed to establish a prima facie case of discrimination as to the other two claims. Smith appealed. The Appellate court affirmed the district court’s decision, but they did say it was “close.” AT&T did not discriminate against Smith by using the word tenured, because there were other employees of the same age as Smith who were promoted to customer service management positions.

Be aware of the verbiage used to speak to employees

This case is another example of how careful employers need to be about age discrimination, not only in job postings. It’s imperative to train managers about the vagaries of ageism in the workplace to avoid a costly lawsuit. Even though AT&T prevailed, the company still had a pretty hefty legal tab. Don’t try to get around the ADEA by using terminology that could screen out older workers, such as “digital native,” or “recent college grad.” Remind employees and managers about ageism. Document everything. Pay attention to other cases about age discrimination, such as the iTutor case or this case about retirement-driven talk. You may not be able to prevent an employee from feeling discriminated against, but you can certainly protect your business by doing what you can to avoid ageism.

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Opinion Editorials

Writing with pen and paper may mean your smarter than your digital peers

(EDITORIAL) Can writing old fashioned make you smarter? Once considered and art form, handwriting is becoming a thing of the past, but should it be?

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Writing on paper job titles.

When I was in college, in 2002, laptops weren’t really commonplace yet. Most students took notes by writing with pen and paper. Today, most students take notes with laptops, tablets, cell phones, or other electronic devices. The days of pen and paper seem to be fading. Some students even wait until the end of class and use their cell phones to take a picture of the whiteboard, so in effect, they are not absorbing any of the information because they “can just take a picture of it and look at it later.”

Is it easier to take notes on an electronic device? I think that largely depends on preference. I type faster than I write, but I still prefer to take notes on paper.

According to researchers at Princeton University and the University of California, Los Angeles, students who take handwritten notes generally outperform students who typed them.

Writing notes help students learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.

While most students can type faster than they write, this advantage is short-term. As the WSJ points out, “after just 24 hours, the computer note takers typically forgot material they’ve transcribed, several studies said. Nor were their copious notes much help in refreshing their memory because they were so superficial.” So while it may take a bit longer to capture the notes by hand, more likely than not, you will retain the information longer if you put pen to paper.

As I teach English Composition at the University of Oklahoma, I would also like to say that while I find this to be true for myself, every student has a different learning style. Typed notes are much better than no notes at all. Some students detest writing by hand and I understand that. Everything in our world has gone digital from phones to cable television so it makes sense, even if I don’t like it, that students gravitate more towards electronic note taking than pen and paper.

While I would like to see more students take notes by hand, I certainly won’t require it. Some students are navigating learning disabilities, anxieties, and other impediments that make taking notes digitally more advantageous.

I imagine the same is true for other areas as well: instead of typing meeting notes, what would happen if you wrote them by hand? Would you retain the information longer? Perhaps, and perhaps not; again, I think this depends on your individual learning style.

I would like to suggest that if you are one of the more “electronically-minded” writers, use a flashcard app, or other studying tool to help you review your classroom notes or meeting notes to make them “stick” a bit better. While I find this type of research intriguing, if you enjoy taking your notes electronically, I wouldn’t change my method based on this.

If it’s working for you, keep doing it. Don’t mind me, I’ll be over here, writing everything down with pen and paper.

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Opinion Editorials

5 reasons using a VPN is more important now than ever

(EDITORIAL) Virtual private networks (VPN), have always been valuable, but now, more than ever, entrepreneurs and businesses really should have them.

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VPN

Virtual private networks (VPN), have always been valuable, but some recent developments in technology, laws, and politics are making them even more important for entrepreneurs and businesses.

A VPN serves as an intermediary layer of anonymity and security between your computer and your internet connection. Your Wi-Fi signal is a radio wave that can ordinarily be intercepted, so any data you transmit back and forth could be taken and abused by interested parties. VPNs act as a kind of middleman, encrypting the data you transmit and protecting you from those prying eyes.

Top10BestVPN.com offers a selection of some of the best-reviewed VPN services on the market; there you can see the different approaches to security and anonymity that different brands take, and get a feel for the price points that are available. But why is it that VPNs are becoming even more important for business owners and entrepreneurs?

These are just five of the emerging influencers in the increasing importance of VPNs:

1. The rise of IoT. The Internet of Things (IoT) is already taking off, with a predicted 8.4 billion devices will be connected to the internet by the end of the year. All those extra connections mean extra points of vulnerability; hackers are skilled at finding tiny entry points, so every new channel you open up on your Wi-Fi connection is another opportunity they could potentially exploit. Using a VPN won’t make your network completely hack-proof—user errors, like giving your password away in a phishing scam, are still a potential threat—but VPNs will make your network more secure than it was before.

2. The popularity of ransomware. Ransomware is growing in popularity, seizing control of devices, sometimes for weeks or months before activating, then holding the device “hostage,” and demanding payment in exchange for releasing the files that are stored on it. These attacks are fast and efficient, making them ideal for hackers to use against small businesses. Again, using a VPN won’t make you immune from these types of attacks, but they will make you harder to target—and hackers tend to opt for the path of least resistance.

3. The escalation of attacks on small businesses. Speaking of small businesses, they happen to be some of the most frequent targets of cybercriminals. About 43 percent of all cyberattacks target small businesses, in part because they have fewer technological defenses but still have valuable assets. Protecting yourself from cyberattacks is a must if you want your business to survive.

4. Political attacks on net neutrality. Politicians have recently attempted to attack and eliminate net neutrality, which is the long-standing guarantee that internet providers can’t violate user privacy by collecting and/or reporting on certain types of data, and can’t create “slow lanes” that throttle certain types of traffic. If net neutrality is abolished, you could face slower internet traffic and decreased privacy on the web. A VPN could, in theory, protect you from these effects. First, your web traffic would be anonymized, so internet providers couldn’t gather as much data on you as other customers. Second, you’ll be routed through a private VPN server, which could help you get around some of the speed throttling you might otherwise see. It’s uncertain whether net neutrality will ultimately fall, but if it does, you’ll want a VPN in place to protect you.

5. The affordability and diversity of VPNs available. Finally, it’s worth considering that VPNs are more affordable and more available than ever before. There are specific VPNs for all manner of businesses and individuals, and they’re all reasonably affordable. Inexpensive options can be yours for as little as a few dollars per month, and more robust, secure options are still affordable, even for frugal businesses. If you try a VPN provider you don’t like, you can always cancel and switch to another provider. This availability makes it easier to find exactly what you need.

If you’ve never used a VPN before and you’re confused, try not to be intimidated. VPNs sound complex, but connecting to one is a simple login process you can use on practically any device. The hardest part is choosing a reliable provider that suits your business’s need. With the influx of coming changes, it’s a good idea to get your VPN in place sooner rather than later.

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