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Here is how HR can help prevent the missteps that could cost your company big in court.
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Terminations are hard on everyone—terminated employees, their colleagues, HR and managers. They are one of the most difficult duties HR has to perform. But HR professionals can help ease the blow and diminish the chances of a lawsuit by taking a few common sense steps.
The termination meeting should be short—no more than 15 minutes, said Dorman Walker, an attorney with Balch & Bingham in Montgomery, Ala., to SHRM Online. HR should be there in addition to management.
Tuesday, not Friday, is the best day to terminate someone, HR professionals in a LinkedIn discussion agreed. That way, if the discharged worker has any questions about the termination, such as questions about COBRA, someone is in the office the next few days to answer.
“Monday gives HR and the terminated employee’s manager time to ensure all paperwork and communication is ready,” said Michael Godfrey, global human resources leader for HR consulting firm Organizational Alchemy in Seattle. “Once the termination is complete, you have the remainder of the week to help the terminated employee’s team and/or larger organization through the transition.”
Meg Caddick, HR director with records management firm Iron Mountain Inc. in Washington, D.C., said that Tuesday “seems to be a preferred day of the week,” and recommended offering outplacement support, which “can provide the employee with the momentum to move forward and not fixate on a previous role.”
But Nathaniel Glasser, an attorney with Epstein, Becker & Green in Washington, D.C., said, “There are many different opinions on the best day and time to conduct a termination. I suggest worrying less about the specific day and simply concentrate on getting all the ducks in a row and communicating the decision once that happens.”
Dawn Iselin, SHRM-SCP, a human resources consultant and chief operating officer at heavy equipment installer American Industrial Werks in Schaumburg, Ill., prefers to hold the initial meeting on a Tuesday morning, so the employee later can be assisted with COBRA, unemployment filing and outplacement support. “I also offer access to any social service or counseling resources, as I believe we should all be compassionate when someone loses their livelihood,” she noted.
Iselin keeps the initial meeting short but does plan time for taking questions from the discharged employee. “If they have questions, I want to answer them,” she said. “This is not to be confused as allowing a debate, but rather allowing time to answer questions on topics such as reason for separation, benefits, severance—if applicable.”
And Iselin sets the stage for follow-up questions, the return of company property, employee assistance program counseling and outplacement services.
“After the initial conversation, I may offer to meet via video or teleconference, which is sometimes easier for the employee, or in a conference room with private exit.” An additional observer records meeting notes, which are kept strictly confidential.
“Other employees are watching the process, judging the professionalism and dignity—or lack of—to which the terminated employee is subjected,” Iselin noted. “Our reactions and actions set the tone for our culture.”
But some think the termination process should be much more cut and dried.
Responding to the LinkedIn discussion, Andrea Ballard, SHRM-SCP, an HR consultant with Expecting Change LLC in Olympia, Wash., said, “Based on the large number of people I’ve spoken with directly after a termination meeting, they don’t remember or recall much after hearing, ‘Today is your last day,’ and most employees being terminated just want out as quickly as possible. Handing them paperwork they can take home and a sincere offer to answer questions after they’ve had time to process seems to be the best way to go.”
Some HR professionals prefer to hold the meeting at the close of the workday. Matthew Barron, SHRM-CP, and senior engagement manager at staffing company Ascent Services Group in San Francisco, conducts terminations “primarily after hours or at the very end of the day. This minimizes the risk to other staff and allows an employee an opportunity to pack up without an office full of staff awkwardly pretending it’s not happening.”
Legal Odds and Ends
“The tone set during the termination could mean the difference between a lawsuit or not,” said Cindy Forman, SHRM-SCP, an HR consultant with her consulting firm ForMan Kind LLC in New York City. “If you make sure the employee being terminated feels heard and respected, as difficult as the message is to hear, there is a better chance of the employee moving forward quietly.”
Also responding to the LinkedIn discussion, Bonnie Shea, director of human resources with CommuniCare Health Centers in Sacramento, Calif., said that she often gives employees the opportunity to resign in lieu of termination. Usually, the employee opts to resign. That helps the worker leave with dignity and helps the employee in future job pursuits. (Though this option isn’t made when the reason for discharge is egregious and requires sudden discharge, Shea noted.)
She presents a resignation letter and termination document to the employee, who has the option of signing the former. “Either way, employment is ending that day. I find it helps employees feel better in a very unpleasant life event. When they don’t walk out the door angry, they are less likely to sue,” Shea said, noting that her company does not provide references.
Glasser, the attorney with Epstein, Becker & Green, recommended “conveying an involuntary termination as such. If the employee is concerned about the impact of obtaining new employment, and the employee is otherwise leaving on good terms, then the employer may negotiate to change the termination to a voluntary resignation in terms of a release.”
An employer can fund a lot of severance packages for the cost of one lawsuit, noted Walker, attorney with Balch & Bingham.
Remember that under the Older Workers Benefit Protection Act, a waiver must give an employee seven days to revoke his or her signature on a release, he reminded.
Karen Morinelli, an attorney with Ogletree Deakins in Tampa, Fla., said HR should have a process in place to ensure the decision to terminate has been reviewed and approved by the appropriate level of management, HR and legal.
A checklist should include review of whether:
“Additionally, if an employee has recently been afforded workers’ compensation leave, FMLA [Family and Medical Leave Act time off], accommodation under the ADA [Americans with Disabilities Act], or filed a charge or complaint either orally or in writing, the HR department should ensure that legal counsel evaluates the risks and opines on the possible outcomes,” Morinelli added.
Exit on Neutral Ground
Glasser noted that the termination should be conveyed in person on neutral ground, such as in a conference room or in HR offices.
Larry Floyd, an HR professional with Kellogg Company, the cereal and nutrition company, in Atlanta, recommended, “Be clear, straightforward and respectful when terminating an employee. The way an employee leaves a company is just as important as the entrance into a company.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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