HR’s Toughest Task: Navigating Legal and Ethical Terminations with Empathy

[00:00:00] Mo: Welcome to today's episode of People and Strategy. I'm your host, Mo Fathelbab, president of International Facilitators Organization. We are here at SHRM 25, the largest HR conference in the world. People in Strategy is a podcast from the SHRM Executive Network, the premier network of executives in the field of human resources.

Each week, we bring you in-depth conversations with the country's top HR executives and thought leaders. For today's conversation, I'm excited to be joined by Dennis A. Davis, National Director of Client Training at Ogletree Deakins. For today's episode, we'll be discussing employee terminations and the legal and behavioral ramifications that come with it.

Welcome, Dennis. Thank you Mo. Happy to be here. Great to have you with us, Dennis. So Dennis, you are a nationally recognized expert on conflict resolution and workplace. Violence prevention.

[00:00:59] Dennis Davis: So I'm told.

[00:00:59] Mo: So you're told

[00:01:00] Dennis Davis: Yes. Yes.

[00:01:01] Mo: So how did you get to that role? That is a unique role.

[00:01:04] Dennis Davis: It is a unique, role.

And here's what I'll tell you. I started my career as a police psychologist and, in that role, me and my then colleagues, we consulted to a. Local, state and federal law enforcement agencies. We developed their trainings. we implemented trainings. We, did trainings like, threat recognition and deescalation, conflict resolution.

And we taught it, to law enforcement agents. How, do you go into a community, maybe a community you have no familiarity with, and, represent the law, and do it in such a way as to calm things, as opposed to escalate things. So that's how I got started.

[00:01:44] Mo: And how do you calm things instead of escalating things? What are some of the tips and tricks?

[00:01:51] Dennis Davis: Well, one of the tips is you have to see yourself, as a deescalation. you have to see yourself first as a person whose job is to go into a situation and take it from here to here. And, one of the things that, that I used to remind officers of that I worked with was this.

Each of us have the capacity to walk into a situation and to excite things. We have the capacity to walk into a situation and to deescalate things, and you have to choose in your head which one you wanna be. That's where you start. And then what? Well, sometimes you have to escalate. sometimes you have to explain to people what their options are.

Sir, ma'am, if I can't get you to comply, I'm going to have to get you to come with me. I would rather have us resolve this here and now you have to use your voice and your body language, to, get people's willful compliance. And willful compliance is a really important concept. How do you get people to do what you need them to do?

Willfully. yeah, we can fight, but you know what? I won't enjoy that. I, get no pleasure outta fighting. Let's talk about how to, both of us get what we need to get out of this interaction. That's gotta be the starting point, and sometimes we have to escalate from there.

[00:03:08] Mo: And if you're not getting the results you want, you're saying it's okay to escalate?

[00:03:11] Dennis Davis: Well, when you're, a police officer, yes. For, you and I, people in civilian life, no, it's not. it's important for us to walk away sometimes. O one of the things that I teach, HR professionals and, supervisors and managers is when do you decide to walk away from an interaction as opposed to when you're a police officer on the street?

Sometimes you might have to put your hands on someone, but we're not police officers and so. Sometimes we have to make the decision, you know what, this isn't going the way I thought it would go, or the way I want it to go. So. I think maybe what I'll do is take a break and maybe we'll try this again later.

I'll walk away from the interaction. It takes a lot of gumption to do that. 'cause most of us, we, tell ourselves internally that we have failed. If we have to take a break and walk away. Self-talk is really important. when you're trying to deescalate things and you're trying to resolve conflict, self-talk.

What do I tell myself about what my job is here, what my role is here? What do I tell myself, along the way if I'm not being successful?

[00:04:12] Mo: Yeah. Now one of the things that strikes me in those situations is if you're triggered.

[00:04:17] Dennis Davis: Yeah. Yeah.

[00:04:19] Mo: How do you stop from being triggered? How do we

[00:04:21] Dennis Davis: ah, look at you mo getting to the, thick of things.

So let's talk about trigger. First of all, it's my opinion, this isn't to you, but it's my opinion that's a much overused term triggered because it sounds so passive. I was triggered, well, well, hold on.

[00:04:40] Mo: Ooh, you're not owning your,

[00:04:41] Dennis Davis: you're not owning your own reaction in the circumstance.

What is it that you can do to me right now, here and now, Mo, that's gonna make me put my hands on you or cuss you out? Nothing. Now, if you put your hands on me and I'm in self-defense mode, well that's a different story. But us sitting here and you saying something to me that I would prefer not to hear, that's not gonna quote unquote trigger me.

And so I have to take responsibility for my own behavior, my own actions. I'll share a brief story with you if you'll allow me. I'd love it. I knew since I was 12 years old that I wanted to be a shrink, and so I was in graduate school and a program I went to required that every would be shrink, had to do at least one year of therapy with themselves as patients.

In other words, I had to sign up and go to therapy for at least a year. I ended up doing two whole other reason. Was that enough? Well, no, it wasn't. And so what I'll tell you is on and off throughout my life, I've gotten back into therapy, but I'll talk about that initial year. The purpose of that was this.

When you're a therapist and I say a police officer or a lawyer or an HR professional, when you are an interviewer, when you're a an on camera person, when you are just about anything that I can think of, you have to be certain. That should anything get stirred up in your interaction with that other person that is not coming from you.

And so that takes out of the equation the idea of being triggered. So what you're supposed to learn along the way, are what your issues are. What are the kind of things that cause you to, self-doubt and what are the kind of things that frustrate you and anger you? And once you. Are aware of those things.

The theory goes, you can manage your responses to those things, your reaction to those things so that you're not triggered.

[00:06:38] Mo: Okay, I love that. So one of the things that, SHRM has been focused on is civility at work. Where do you think the state of civility at work is today?

[00:06:48] Dennis Davis: All right, so again, you're gonna have to allow me to tell a story, please.

About 20 years ago, I was doing a presentation and I coined a phrase, the Jerry Phil Corporatization of society. I'm gonna say it again. Jerry. Phil, corporatization of society. Explain please. okay. Now, and I can guess, but I wanna hear, I know as soon as I, I saw your smile as soon as I start talking about it.

I know. You know what this is, back when I coined that phrase, Jerry Springer, Phil Donahue and Oprah Winfrey Yep. Were the big things in daytime talk. Yes. Right. And during that era, yeah. People would go into their shows and just talk about the. Coarses themes you can think of. And when I coined that phrase that Jerry Phil authorization of society, what I was suggesting was that we are becoming more and more coarse as a society and that coing is going to have an impact.

I don't see myself as a profit or anything like that, but I did see, that happening and I said, listen, employers, HR professionals, employment lawyers, we can say to our people, you know what, what happens out there? Happens out there, but at the threshold of our business, we can say, Nope, it's not gonna happen in here.

You might disagree with your colleague, but you're not gonna cuss them out. you're not gonna tell them off. And, to answer your original question, which is my impression of civility in our society and civility in our workplaces. It's gone downhill from there.

[00:08:34] Mo: And that's all because of. Jerry Springer and Oprah. And Phil,

[00:08:40] Dennis Davis: As you might know, Jerry Springer passed away not too long ago. And so I certainly don't wanna lay at all at his lap or Phil Donahue's lap, or Oprah Winfrey's lap. I'll simply say, you know, it was whole idea of going on a talk show and talking about the worst behavior I've ever engaged in my entire life.

Right. And being proud of that. See, when I was, coming up, and perhaps you, I don't know, I suspect I'm much older than you, but, maybe you may maybe both have the same, may, maybe you just look young, right? but when I was growing up, we recognize that we were imperfect beings. I recognize that I'm imperfect.

I recognize that I mess up and I make mistakes, but I don't want to be known for those mistakes. I wanna be known for how I help someone. You know, Andy Warhol talked about people having their 15 minutes of fame. And, what I will tell you is we've gotten to a place in our society and many workplaces, well, not at all, where people will pursue that 15 minutes of fame, even if it's for the worst, most dastardly, ugliest, nastiest things.

And so the message I try to put out there is now you can get your 15 minutes of fame and it can be for something really. Pleasant, something really nice, something really, appropriate and lawful and ethical.

[00:10:05] Mo: Yeah. So what you're saying really is, it's just made it Okay. It set a bad example.

[00:10:11] Dennis Davis: Yes. Yes. And it wasn't the only thing, that term was kind of catchy. so I, that's why I came up with it. But it wasn't just a talk show. it's grade inflation. Great. You remember that Grade inflation, when I was a kid, I, if you didn't do on the test and you gotta see, then you gotta see.

Right. but you know, parents kind of complain about their child being given a C and so we gave that child a, a B or maybe an A minus. Right? as opposed to making them reflect on, you know, the teacher gave me a C, no, Dennis, you earned a C. If you wanna earn a B the next time, this is what you're going to need to do.

That's taking ownership of where I am and what I've done and what I haven't done. And so when we, great inflation, and the pursuing of our 15 minutes of fa fame, and then, you know, let's be real, some of the things that we see happening on the part of our, our public figures, well, if they can do it, then I can do it too.

Yeah.

[00:11:13] Mo: So, as a shrink, I'm really curious, what's the implication of somebody taking ownership? Versus somebody not taking ownership Yeah. For their behaviors.

[00:11:22] Dennis Davis: Yeah. See, when I take ownership of it, it makes me look at myself. It makes me look within, it makes me introspective it, ma it makes me say, you know what, Dennis, that's not how mama raised you.

you know what, Dennis, that's not what you learned in school. You know, Dennis, that's not what you want from your own son. So when I look at myself and I give myself those messages, just the idea of looking at myself. Makes me make an adjustment. And when you make enough adjustments, you get yourself right.

It, I think that's important.

[00:11:57] Mo: I love that. So one of your presentations here at Term 25 was on legal and psychologically sound terminations. Yeah. What are some of the biggest mistakes you see companies making during terminations?

[00:12:08] Dennis Davis: Well, one is, not terminating people with dignity. Perhaps I make the decision that Mo, we're gonna have to let you go.

Right? but Mo isn't a bad person. so I'm not gonna embarrass him. I'm not gonna make him lose face. I'm not gonna make him, feel less than. It's not gonna work here, but he's still a decent human being and I wish him well. And that needs to be top of our list in most cases. it's not gonna work here, but he's still a worthy human being and I wish him well.

That's gotta be my perspective. I can take no joy out of seeing someone separated. I can take no joy. What we know is that termination can be one of the most traumatic experiences in a person's life. So if I understand that, then when I do terminate you, I'm gonna do my best not to cause additional trauma.

It's traumatic no matter what, but I'm not gonna cause, additional trauma. So that's number one. some other things that make a termination, a good versus bad or bad versus good, not selecting the appropriate day and time. Many individuals, many organizations, they tend to want to terminate people.

Friday at the end of business Friday at five o'clock. Worst day and time to fire somebody. Why? Well, when you terminate me appropriately, you help me move on with the rest of my life.

[00:13:41] Mo: Some companies do that proactively.

[00:13:43] Dennis Davis: Yes. Yes. By helping us, helping me, search for a job and things like that.

You wanna help me move on with the rest of my life? But Friday at five o'clock there, there's some things I can't do. maybe I worked for you for 11 years. I haven't had a resume for 11 years, Friday at five o'clock, I can't even contact a resume service. there's a person, who I don't really know, we're not friends, but I've seen him at the food truck, or the cafeteria.

and both of our companies are in the building. and so he goes to the cafeteria and he was talking one day about his company, his hiring, but Friday at five o'clock, I can't even connect with him to find out how they're hiring. 'cause we're not friends. I only see him at work Friday at five o'clock.

The only thing I can do is go home and sit around and stew. How wrong you done me? So Monday, nine o'clock. Better. Tuesday at 11. O'clock's. Even better. Okay, now. Now, why Tuesday versus Monday? Why? Yes, I can see the look on your face. Why not Monday? Well, Monday's not bad, but we as HR professors sometimes, and employment lawyers, sometimes we're so busy on Monday, we can't pull together all the things we need to pull together to do a respectful and dignified termination.

If you can. Fair enough. But Tuesday allows us time to plan the termination. in, in many states, you have a certain amount of time within which you have to gimme my final paycheck. But what I say is if it's, if I'm not going to be here any longer, why not? I have my final check. cut and ready for me at that termination meeting.

I put together a whole package. Talk to me about COVID. All the things you gotta talk to me about. Sometimes we can't do that by, Monday morning, but Tuesday, 11 o'clock. Now, here's why I like 11 o'clock. In many businesses around the country internationally, what we'll see happening is 11 30, 12 o'clock, people start to think about lunch.

And, people started to go out and stuff like that. So when you terminate me, we have a meeting at 11. By 1115 or so, we're done. I can walk out with a lunch crowd. I'm able to maintain some dignity.

Maybe no one knows that I've been terminated, but you, the person who terminated me, and the upper restaurant of our organization, I still have some dignity.

I got some faith, and that I believe is really important.

[00:16:01] Mo: Dignity. It's really important. Important. Very important. Yes. Thank you. Yes. So the other side of this is the impact on the remaining employees when somebody's terminated. Yeah. so what are the emotional and psychological effects that leaders need to be aware of and how to tend to them?

[00:16:16] Dennis Davis: These are great questions. Mo these are great questions.

[00:16:19] Mo: Thank you. Thank you, We have a great team here at SHRM.

[00:16:21] Dennis Davis: You clearly do. Clearly you do. One of the things that happens is this, survivor guilt. Now, let's say we're in a setting where you didn't do anything. You weren't, you're not, being terminated for cause.

we're restructuring. we, you were a at will employee and we're doing something different right now. Okay? Fair enough. But I survived. I made the cut. I'm still with us. And so, sometimes I'll have some survivor guilt, I think to myself, oh my goodness. Mo's not here. what did he do to deserve being gone?

Nothing. What did I do to deserve being here? Nothing. Oh my God, I feel horrible. Or I could be next, or I could be next. You took the words wrong. I could be next. These people have no loyalty. Mo had been around here for 11 years. I've been around for maybe I'm next. That. But the other side of that too, sometimes people who are terminated, they will spread poison and venom throughout the organization.

They're a bad employer, they're not good things like that. You wanna try to minimize that as well?

[00:17:30] Mo: We don't want that. You don't want that. So you do a lot of training with employees and managers on psychological safety. Let's first define psychological safety.

[00:17:38] Dennis Davis: Psychological safety. It can be defined in a complex way or really simply, and I like to define it simply, it's simply the condition of feeling secure.

Not job security, not, I'll never be terminated, but secure. I feel a certain level of comfort. I feel that my organization, my employer, they care about me. There are three questions that all of us ask ourselves about our employer. Some of us ask these questions consciously out loud, and some of us ask these questions, unconsciously.

Question number one, do you care about me? Do you care about me? Yeah, I know. I'm on your team and in order for you to have a fully a staff team, I gotta be here, but do you care about me? That's number one. Psychological safety is I feel cared about.

Number two, are you committed to me?

As much as you ask me to be committed to you. That's a part of psychological safety. And question number three, and it's a big one. Would you tell me, would you tell me if things changed for me? Would you tell me if things changed for me? In other words, can I trust you? Can I trust you?

Those are the three big questions in my opinion. that, account for psychological safety.

[00:19:15] Mo: Do you see feedback playing a role in that, at least in addressing the third question when feedback is done regularly and effectively?

[00:19:22] Dennis Davis: Absolutely. In fact, it's funny you mentioned that Mo because, in my presentation today, one of the questions that came up was, what about feedback Then as I.

I'm in favor of, you know, there's a lot of discussion these days about whether we should do performance appraisals or not. Lots of conversation around that. some organizations have stopped doing them all together, and it's not for me to judge, but one of the things that I think is really important, I think people, they prize feedback.

they cherish feedback. How else can I know how I'm doing? So yes, I think it's really essential.

[00:20:00] Mo: You know what's interesting when I do feedback. People enjoy the opportunities for improvement more so than the accolades. You see the same? yes. Not only, and yet we're afraid to give feedback,

[00:20:12] Dennis Davis: not only do I see the same thing, I'm the same way myself Here, I'll tell you, when I do a presentation, and this will sound initially, it'll sound arrogant, but I know you'll understand it based upon what you just said.

When I do a presentation and afterwards people come to, oh, Dr. Day. That was so good. That was so good. Oh, we appreciate that. I mean, I accept that. What I really want to hear is I would've appreciated it if you would've touched on this, when you said that thing. I was kinda, I, that I can do something about that I really feel like I need, I feel the need to hear that.

Or you ever done a presentation? They're doing written evaluations and at the end you get to read the evaluations. And I will tell you, I read every single one of them. And let's say it's a Likert scale from one to five, one being eh, it was a complete waste of my time. Five being that person walked on water.

You know what disappoints me? I don't care if all scores are five, but there are no comments that frustrates me. Why? 'cause I want to grow. I want to get better. I want that person that sat in that presentation to give me some feedback about what they would've appreciated. And our employee employees are the same way.

[00:21:20] Mo: That's right. Dr. David Bradford from the Graduate School of Business says Feedback is a gift.

[00:21:25] Dennis Davis: Absolutely. Absolutely. It's a gift.

[00:21:28] Mo: It gives us that opportunity to self-correct.

[00:21:30] Dennis Davis: It gives us an opportunity to grow and grow. Yes, yes.

[00:21:33] Mo: I love it. I love it. and what are some of the questions you get from managers?

What are the most common questions you get from managers about terminations..

[00:21:44] Dennis Davis: Well, you mentioned psychological safety. the number one question I get, it's because of my background. What I do, the number one question I get is, Hey Dennis, what about if I don't feel safe, physically safe? what about that, the concern for violence?

Right. and how do I account for that? how do I protect myself? I get that question a lot. Dennis. I'm afraid, this person I'm about to terminate, he has threatened to punch people in the face. He's threatened to blow this place up. He's threatened this, he's threatened that. how do I deal with that, Dennis?

How do you deal with that? Well, there's a lot. First of all, there was some old fashioned thinking and it was all terminations have to be done live. No. No. Yeah, and the reason that came about was because, it's dignified and thoughtful if I've got bad news for you to deliver it in person. And I agree with that even still.

But let's say that your home on suspension pending an investigation. What we're investigating is, it's been alleged, that you broke into our place and, you left mean nasty, messages for people and you threatened to, to hurt people. And so we gotta do an investigation while you're at home.

Well, you know what? Why will we bring you back on site to deliver the information to you? So that's a termination we might have to do remotely, and I'm okay with that. That's the number one question I get. how do I address violence? Well, sometimes we keep a person offite. Number two, you know what?

It's really important that I not be the only one that's aware of the threats you've made and the threat that you pose. acting in silos, you know, sometimes in HR, we protect our territory. and this is my little silo, and if I inform other people or engage other people, maybe my authority will be usurped.

No, let me talk to upper management. Let talk to legal. Let me talk to security. Let me inform some other people that I'm gonna be doing this difficult termination. And I like to get some other eyes on this situation. I like to get some other input. those are really big things to do. Really important things.

[00:23:52] Mo: great stuff. So, Dennis, what. Bad terminations. Have you seen, like, can you tell us a story or two of a termination gone badly?

[00:24:00] Dennis Davis: Yes, I can. Yes, I can. one, many years ago, I was on, a board of directors, for this not for profit organization. And, I'm at a board meeting once and in the board meeting the decision was made to terminate the, executive director.

I voted against it, but, I was outvoted and the decision was made to terminate the executive director. At that time, the chairman of the board walked outside of the meeting and brought the executive director into the meeting to inform him of the decision. With all of us eight board members sitting there, we've made the decision, that this is gonna be your last take.

I was horrified. Eight people watching me get fired now is a very talk about being, humility humiliated and talk about dignity. Oh, completely. Undignified and com completely humiliating. But this was a very proud man, and he sat there and I could tell he was trying his best to hold it together.

I never would've been a part of that if I knew that was coming up, but he was trying to hold it together. God bless me, he was right. And so that was thing number one. Thing number two, he wasn't responding. he wasn't talking. I could tell he was trying to hold it together. And so the chairman of the board asked him, so how do you feel about it?

Oh my goodness, what do you mean how he feels horrible. Let's allow this man some dignity. And, that he was robbed of that dignity. That was one example. another example was I was asked to terminate someone. The organization was concerned about this person's propensity for violence. And, so when I showed up at the location to do the termination, they had security hiding, out of sight, Uhhuh.

I said, well, wait. Why? Why do you have security hiding out of sight? Well, Dennis, this person has, threatened to harm, people. Well then why not bring security in? And explain to him why they're there. The reason I'm accompanied by security today, is because I've been told, that there's been a threat, of violence.

so these are just. Mistakes that people make and they're not infrequent mistakes that people make.

[00:26:18] Mo: Yeah. So the other thing that's a big buzz these days, of course, is ai and it's been an incredible tool for many of us. Yes. Have you seen it used in terminations? And if so, how?

[00:26:29] Dennis Davis: So, Mo, I'm gonna tell you, thankfully I've not seen it used.

I have heard of it. But I have never, ever seen it used, as a way to terminate someone. And I gotta tell you, while I am certain that there are wonderful uses of AI and every single day there seems to be, an advance in, AI technology, it is my opinion that termination is just not one of the ways, that AI is going to benefit us.

I don't think it benefits anyone, to be, terminated by, an ai, app.

[00:27:04] Mo: Can AI give you, the text of what you might say during a termination?

[00:27:10] Dennis Davis: I suppose? I suppose if what you're asking is, Hey, Dennis. Yeah. can you imagine that a person who's about to conduct a termination might, consult, AI for some possible or potential language to use. yeah, I can imagine that. But here's what I'm gonna tell you. You know, and I know that sometimes we see shortcuts and that wouldn't be good. So I have, AI script the termination and I just read it word for word. I'm concerned about that. 'cause I've heard about too many times when AI scripted something and it just didn't quite fit.

That would concern me.

[00:27:51] Mo: Hundred percent.

what or who rather at an organization should be conducting these terminations and when should it rise to the level of the CHRO?

[00:28:02] Dennis Davis: That's a great question. Let me think this through. So, who should be terminating, doing terminations? First of all, I happen to believe that in most settings there should be two people there.

my legal colleagues tell me, one person to observe and one person to, to participate or conduct it. you know, as a witness, there's one person and to conduct it, there's another person. but here's the other thing. Psychologically, what happens when there are two of us, there is you're doing the firing, but your colleague here, is sitting there, maybe taking notes or whatever, and that tends to deescalate my behavior.

Because there are another pair of eyes watching me. So I think it's a good idea, in most settings when there's more than one person. And now who should do it? Well, someone will have a relationship with, it's a good idea, whether it is, my direct supervisor or manager, combined with someone from HR.

But let's say that I have a difficult relationship with my, supervisor, manager, then maybe it's, my supervisor's manager, and HR. so, so it's hard to say who specifically, but typically it should be two people. And I think that HR should be involved. Now, when should it rise to the CHO? Well, here's, I'll tell you, very often.

Your, HR professional who is not, him or herself themselves, on a manager's level, or VP level, feel intimidated by those people in the upper echelons of an organization. And so at that point it would likely, fall on the shoulders of the show to, to do that.

[00:29:49] Mo: Alright. Alright.

Good advice. Thank you. Last question, Dennis. What is one. Piece of advice that has shaped your work or personal life?

[00:29:58] Dennis Davis: You know, I went to school for 10 years, four years as an undergraduate, two years for a master's and four years for a PhD. And even with all of that, the best advice I've ever gotten, came from my mama.

who died 28 years ago. But my mother used to say all the time when I was a little kid, and I didn't, I, would be less than transparent, less than honest if I didn't tell you this. I didn't always pay attention to it, as many of us don't, when our mothers started to tell us something. But she would always say, son, be true to yourself, son.

Be true to yourself, son, when you're about to say something. In your heart, you know it's not true, then don't say it When you're about to do something, and in your gut, you know it's wrong. Don't do it. Be true to yourself, and I'll tell you what, that has stuck with me. Through all the classes I've taken, all the ethics, courses I've taken, all the really, highly, touted people.

I've listened to that advice from my mother way back when I was very impressionable. That stuck with me my entire life. I love it. Dennis, thank you so much, Mo. It's been a pleasure.

[00:31:06] Mo: What a pleasure it's been. Thank you. Thanks for tuning in. You could follow the People in Strategy podcast wherever you get your podcasts.

Also, podcast reviews have a real impact on podcast visibility. So if you enjoyed today's episode, leave a review to help others find the show. Finally, you could find all our episodes on our website at SHRM dot org slash podcast. And while you're there, sign up for our weekly newsletter. Thanks for joining us, and have a great day.

[00:31:39] SHRM: SHRM.