by Faith Alejandro
Employment separations are never easy or pleasant, but at times, you may find it necessary and in the best interest of your business. Whether you need to lay off an employee because of the economy or fire someone for cause, the termination process can be challenging. But there are a few tips to ensure a smooth process and to minimize the potential of a lawsuit.
First, review the information leading up to the termination and ask yourself “Was this person treated fairly?” The answer should guide and inform your ultimate decision and preparation for separation.
Second, employers should always give employees a reason for their separation. When no reason is provided, people naturally fill in the blanks. Particularly if that person was recently on leave, filed for workers’ comp, had a baby, is over 40, is of a particular racial, ethnic, or sexual orientation, or just complained about something at work. Experience shows that it’s much better for employers to provide a succinct and honest reason for why someone is getting fired. Providing a reason is simply the best way for employers to maintain credibility, to show that they are serious and will stand behind their decision. And if the employee later sues, the honest reason for the termination is easier to defend than a sugar-coated variation.
Third, don’t debate or discuss. When you terminate an employee from employment, keep it short. Tell the employee “I understand that this is a difficult meeting, but this is not the time for explanations.” In this way, you remain in control of the meeting and minimize the possibility of hedging your business’s reason for the termination. Even in exit interviews, employers should not say more than what needs to be said in the termination meeting; use exit interviews to let the employee air their feedback.
Fourth, consider using a termination letter after the meeting. This can be the cleanest way to document a separation and to control discoverable information. The letter may restate the reason for termination and may document all prior warnings, and the letter could provide all legal notices about the employee’s benefits, severance, COBRA coverage, and logistics (last day, last paycheck, etc.) But, we always recommend that employers speak with legal counsel on whether a termination letter is appropriate. This letter could go a long way to making sure the employee leaves with a clear understanding of why they are being fired.
With this approach, employers can accomplish the difficult task of firing an employee with clarity and dignity, and, hopefully, minimize the likelihood of a lawsuit.
Read more labor and employment law articles at Virginia Workplace Law
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