Discipline and Discharge—with Dignity

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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.  

The notion that HR must engage in such steps as a matter of compliance or claim prevention is misguided. In my experience, employers increase claim risk through such practices:

• These practices quickly make relationships adversarial.
• As last week's column shows, these practices are hard to administer and often mistake-laden, providing fertile soil for plaintiffs' lawyers to till.

When questions arise about an employee's fit, progressive discipline practices delay decisions that would be better made promptly and proactively.

Fortunately, many employers and HR professionals can show you a better path.

Charlotte Miller, is the chief human resources officer of U.S. Ski & Snowboard in Park City, Utah. In her previous position as senior vice president of people and great work for O.C. Tanner, Miller led the process that resulted in her employer debuting at No. 40 on the Fortune 100 Best Companies to Work For list.

In her long career, Miller has handled more than 5,000 employee terminations. The number of times these discharges ended up in court? Zero.

The key is to be proactive and clear, she said. "We don't talk about employee 'discipline.' When problems arise, the operative question is, 'What have we done to keep a potentially valuable resource?' We don't use labels. It's not 'reprimand' or 'warning.' It's not 'formal' or 'informal.' Rather, we ask [managers], 'Have you communicated with the employee, orally and in writing, about the gap in expectations? If so, have you given that employee—with your help—a fair opportunity to close that gap?' "

One of Miller's favorite practices is the three I's. She'll ask an employee whose performance is causing problems to write three sentences beginning with "I." The sentences express what the employee is committed to doing differently. The manager and employee work through drafts to come up with mutually acceptable goals. "I find that if they write it themselves, they tend to own it," Miller said.

At times, though, these efforts fail, and the employee needs to leave the job. Miller plans the termination meeting carefully. She makes sure the HR director, the employee's manager and the employee are present. She schedules the meeting early in the week and early in the day.

"I also check to make sure that the day doesn't coincide with any significant dates for the employee, such as the employee's birthday or anniversary date of employment."

The manager leads the meeting and delivers the news upfront, without rehashing lots of details of what led to the termination. 

"The one point I emphasize is that the decision is final," Miller said. 

She makes sure to enforce her no-cry rule. It doesn't apply to the employee, who is entitled to feel pain and sadness; it applies only to managers. "I tell them, 'It's not about you; it's about them. Don't say, 'I know this is hard,' because you don't. Don't pretend to be in their shoes.' "

Miller said it is best if the employee leaves the workplace after the termination meeting. She arranges a day for the employee to return to privately collect personal property. 

"No matter the prior communication, the moment of discharge is still a shock. Although people often think they can gather their belongings at that moment, they often become very emotional. To be in that state of mind while gathering personal belongings, such as pictures of loved ones, seems to compound the pain."

Every situation is different, though, Miller acknowledged, and if it seems better to allow the employee to pack up right away, she allows that. "One of my goals in the termination process is to make sure the employee doesn't do anything of which they are later embarrassed. That's why I try to allow them the time to process the situation more privately."

Even if the employee comes back later, she added, it is best if employees can gather their items themselves so that they feel less like their privacy and possessions have been invaded. Depending on the circumstances, employees may have the opportunity to say goodbye to their co-workers, but Miller suggests asking the co-workers in advance if they are comfortable with that.

"Lastly, I rarely let employees continue working after they've been notified of their discharge. It's cruel. The longer you delay the process, the greater the employee's pain. Work transition should already have been covered in the pretermination planning process."

Miller recommends offering both severance and outplacement assistance.

"The severance may not be large, but it helps the employee with his or her immediate fears, such as, 'How will I make the next rent or mortgage payment?' Outplacement assistance is also helpful. It gets employees focused on their next job, as opposed to dwelling on negative feelings from their last job."

The lessons are clear:  

1. Start with appreciation, recognition and investment in employee growth and development.
2. Don't tolerate underperformance or misbehavior.
3. When efforts to close the gap are unsuccessful, act with respect, sensitivity, professionalism—and decisiveness. 

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.