Don’t Shy Away from Tough Conversations When Firing Someone

Allen Smith, J.D. By Allen Smith, J.D. August 24, 2023

​Silence isn't golden when firing someone, legal experts say, although they add that employers should keep the explanation for the termination brief and consistent, and avoid debate.

"A refusal to offer a reason for the discharge may make an employee more likely to pursue a charge of discrimination or litigation, as the departing employee may infer silence from an employer as suggesting an improper motive for the termination from employment," said Philip Kontul, an attorney with Ogletree Deakins in Pittsburgh.

Give the Real Reason

Many managers don't share the real reason for a discharge, said Martha Boyd, an attorney with Baker Donelson in Nashville, Tenn. "I know a lot of managers who shy away from that tough conversation, choosing to tell the employee that their position is being eliminated rather than telling them the hard truth that they are being terminated for poor performance or conduct," she said.

"Worse, I've had managers tell me that they were not planning to tell the employee the reason because the employee is at will," she continued. "These approaches are misguided."

The employer needs to be able to cite the real reason as a defense in case there is a wrongful discharge action. "Come prepared with a few examples of the employee's misconduct or poor performance and any occasions when these deficiencies were discussed with the employee previously," Boyd recommended.

How to Deliver the News

The employer should make every effort to have two of its people present for the termination meeting, preferably someone in management and an HR professional, said Timothy Ford, an attorney with Einhorn Barbarito in Denville, N.J.

Once the reason for termination has been given, HR should move the discussion to other information the employee needs to know, including when their benefits end, when they can expect to receive their COBRA notice, when they will receive their final paycheck and how they should return company property.

"The meeting should last five to 10 minutes maximum," said Anne Yuengert, an attorney with Bradley in Birmingham, Ala. "It is uncomfortable for the employee and the employer, and nothing good can come of a long meeting."

However, she agreed that refusing to give any reasons for termination when employees are at will "does not play well in court, so be ready to explain."

If the termination follows a series of conversations about performance, Yuengert suggested the manager say something like, "As you know, we have been talking about your performance and what changes you needed to make to improve. Unfortunately, you have not been able to make or sustain those changes, and we need to make a change. We are terminating your employment effective today."

If the termination doesn't follow a series of conversations—for example, a relatively new employee doesn't seem to be able to learn how to do the job—she said the employer might say, "You have been with us [a number of] days or weeks, and as we have discussed, you have not been able to meet our expectations for this position. We are terminating your employment effective today."

Move to procedural issues such as last paychecks, return of equipment, COBRA notices and 401(k) rollover as soon as you can, Yuengert recommended. "I like to have a termination letter that covers those issues so you have a script … and the employee will have the information when they leave," she said.

Also, be sure to inform the fired employee about the status of applicable benefits, including bonuses and unused vacation time, said Katie O'Connor, an attorney with Buchanan, Ingersoll & Rooney in Pittsburgh. "Comply with state law regarding any unemployment compensation forms or information that must be provided upon termination," she said. If an employee entered into any agreements during their employment that continue after termination, such as restrictive covenants, the employer may want to remind them of those agreements.

Provide any applicable termination agreements, such as confidentiality agreements to protect an employer's trade secrets. In addition, discuss the reference, if any, that will be provided by the employer to third parties. Consider providing a copy of any reference or employment history letter to avoid future disputes, O'Connor said. Be responsive to questions, she added, including whether there are any circumstances when the employer would consider re-employment.

Have a closing line, such as, "Is there anything you need to get from your locker or desk?" and offer to help the employee with that, Yuengert said.

Ultimately, be compassionate but firm, and don't apologize.

"Express understanding, but be prepared to respond with statements such as, 'I understand you feel that way, but the decision is final,' " Ford said.

Assume the employee is recording the termination meeting and think about how you want to come across to a jury that may be listening to that recording—as a fair and reasonable employer that's offered the employee numerous opportunities to succeed, Boyd said. "Do not let the employee goad you into raising your voice, name-calling or other unprofessional conduct—that won't play well with a jury," she warned.

And statements aren't the only thing to think about. "Always consider reasonable severance for a release," said Richard Greenberg, an attorney with Jackson Lewis in New York City.

Fire Slowly

The cliché "Hire slow and fire fast" is bad advice—at least the "fire fast" portion, Boyd said. "Terminating an employee takes careful deliberation, preparation and documentation," she said. "Do not be rushed into terminating in a haphazard, unprepared way by an overeager manager or by pressure to get the employee out of the office for morale, safety or other reasons. You can always put the employee on an administrative leave while you are making and finalizing the decision to terminate."

Managers also should be vigilant in stopping any office gossip about the termination, said Justin McConnell, an attorney with Fisher Phillips in Orlando, Fla.

A generic, neutral explanation is best—for example, "John Doe is no longer with the company," O'Connor said.



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