What "Firing at Will: A Manager's Guide" Says About Protecting Your Organization During a Termination
Knowing the process of terminating employees from a more holistic, employee-centric perspective can be helpful for HR leaders and hiring managers.
Terminating employees can be one of the most difficult things hiring managers and HR professionals have to do. But identifying performance issues early on and coaching employees to improve can significantly mitigate this need. In some situations, moving an employee into a different role that suits them better, if possible, may be a smart way to resolve issues.
Other times, these steps fail or are not plausible. In those cases, the guidelines and methods outlined in Jay Shepherd's book "Firing at Will: A Manager's Guide" should assist HR leaders and direct supervisors in terminating employees while protecting the organization and its other employees at the same time.
Empathy
Without legalese or discussions of laws, regulations or case law, Shepherd's book can help HR professionals understand the process of terminating employees from a more holistic, employee-centric perspective that focuses on empathy. Even though Shepherd writes from his perspective as an employment lawyer with over 17 years of experience protecting employers from employee lawsuits, his underlying premise is simple and universal: Treat employees with respect and compassion.
One of the key tenets of "Firing at Will" is that employees who sue are more than just disgruntled. They feel hurt, angry, sad or even betrayed. Lawsuits are "weapons of last resort" for these employees. This is why working to ensure that employees feel valued, heard and treated well — even when termination is necessary — can help avoid lawsuits. Employers who treat employees with respect and strive toward common goals have relatively few problems compared to those with less regard for their employees' feelings (and the consequences of those feelings).
Overly Restrictive Policies
Employee handbooks, annual performance appraisals and performance improvement plans are not the answers to the problem of terminating employees. Overly legislated rules — for instance, the precise amount of bereavement leave for deaths in the family — can cause significant ill will. Likewise, discipline policies that focus more on what employees cannot do than on what employees should do have a similar effect.
On top of this, both handbooks and progressive discipline policies can essentially nullify an employee's at-will status by creating an implied semi-contractual relationship, since highly detailed, restrictive policies change the conditions of employment. If a handbook lists all the behaviors or actions that lead to immediate dismissal but an employee does something else and is summarily terminated, for example, the organization will likely lose an ensuing lawsuit.
Legal risks like these are why prevention is so important. One of the surest ways to prevent the need to terminate an employee is to focus on the organization's mission, hiring employees who not only have the right skills and experience but who also believe in that mission and are a good fit for the culture.
Termination
When terminating someone, it is best to avoid putting anything in writing such as a letter with a list of things the employee did wrong. Seeing hurtful words in writing has a stronger negative effect. In addition, this written documentation would be Exhibit 1 in a lawsuit. Hence, this practice can do much more harm than good.
The goal is to always treat employees with dignity and to be humane while ensuring safety. Therefore, after firing an employee, if safety or security is not an issue, it is better to allow the person to gather their things and say goodbye. In contrast, it is not recommended for someone to stay on board for 1-2 weeks to train someone else after they are let go. This transition should occur in advance of a release or not at all as it creates ill will and resentment.
To reduce the likelihood of a lawsuit, where plausible, a release signed by the employee in exchange for severance pay can be a viable option. Severance pay should be more than the required payout of weeks actually worked and accrued vacation, but how much more depends on the firm, the employee and the role. Finally, whether or not severance is provided, it is best to err on the side of generosity with the final paycheck.
Finally, a paper trail is critical in the lead-up to termination. A manager should document every time they sit down with and coach the employee about their undesired behavior. In court, if it is not written down, the belief may be that it probably did not happen. Also, it is better to not have employees sign the documentation, as it makes a tense situation worse and does not strengthen the document from a legal perspective.
Hiring Right
To reduce the need to terminate, firms need to refocus their efforts on talent management and away from personnel matters. Viewing employees as the talent who helps the firm achieve its goals and elevating the department to the C-level is a significant shift that many firms would greatly benefit from. Then, by focusing on what roles they need to fill and the characteristics of those roles, organizations can be much better positioned to recruit and hire the right people the first time.
Terminating employees is sometimes necessary but, by taking the steps above, organizations can make the process more humane and dignified for their employees and greatly reduce the likelihood of a lawsuit. Furthermore, focusing on hiring the right people for the right positions can decrease the need for terminations.
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