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A Quick Primer on Employee Terminations

by | Jul 16, 2019 | Employment

Employer firing employee

Very few people truly enjoy terminating an employee. The goal for any employer is to limit potential liability while also trying to defuse hostility. Ideally, a termination decision should not be a complete surprise for the employee; absent an emergency situation (embezzlement, assault, etc.), the employee would have been counseled about deficiencies in performance and/or attitude, and warned that a failure to improve could lead to termination.  As a manager, you should maintain strong documentation surrounding the actions that led to a termination decision. At a minimum, you should memorialize the decision in a detailed internal email between management and/or human resources personnel.  Once the decision is made, a meeting should be scheduled between the employee, his supervisor, and at least one other person; the presence of two people limits the employee’s ability to claim that he was promised or told something that favors him over the company.  And, after the termination meeting, the two company participants should each write up a short summary of what was said.  In the meantime, the HR person in charge should direct IT personnel to cut off the employee’s access to email, office phone, and company servers during the meeting or immediately afterwards.

Depending on the state, an employer may not be required to provide a written explanation for the termination.  Unless mandated by state and/or local law, an employer should provide verbal notice only.  That way, you are not locked into a single explanation for the termination – additional grounds that will retroactively justify the termination may be uncovered after the employee leaves.  If written notification is required, it should be truthful but couched in terms that suggest there may be multiple reasons for the termination, including but not limited to, the articulated reason(s).  At the conclusion of the meeting, an employer can either allow the employee to pack up his personal effects, under direct observation, or notify him that his belongs will be shipped to his home.  If a company opts to mail his personal belongings, it should include a detailed inventory of the package’s contents, along with a request to notify the company if anything is missing.  After a termination, the company may be contacted by a potential new employer.  We recommend that you identify a specific (single) person to handle any such requests, and to limit the response to job title, dates of employment and salary information.  Any other information you share, even positive, may come back to haunt you.

Additional issues may arise in connection with a non-compete and/or non-solicitation agreement.  If such an agreement exists, you should remind the employee of his obligations and give him a copy of the agreement during the termination meeting.  Upon notice of the termination, an employee may claim that he has been subjected to harassment or discrimination by other employees or management.  Depending on the statements or allegations made, the company may want to investigate those claims, even if they do not change the decision to terminate.  Each of these issues are detailed enough to warrant their own blog posts, which will be forthcoming.  In the meantime, we recommend that you contact an attorney to address these or other issues that may arise in connection with a termination.