How To Fire An Employee When It Must Be Done

Dear Resourceful Manager,

Have you had to sit in front of someone, look them in the eye and fire them?

The anguish you feel leading up to that moment keeps you up at night. And that pales in comparison to snatching the livelihood from someone sitting an arms length away from you.

You feel like the villain, even though you are not.

Sure, you know terminations are a natural and necessary part of business. But, that fact doesn't reduce the guilt any good human being feels when they have to let someone go.

Great managers don't take this responsibility lightly. Understanding that making the right decision – and executing this excruciating task well – is mandatory.

Yet many managers and companies get something in the process dead wrong …

… And, there are sharks in the water, circling every termination situation waiting for you to slip up, lose your footing and fall in so they can attack.

The cost of getting it wrong

More than 950,000 money-hungry sharks lawyers are on call for any disgruntled, terminated employee looking for a pay day … that's just one simple search.

Here's why …

Employees are suing more frequently, winning at a high rate – and employers are paying the price. Plus, the difference between a meritorious claim and a frivolous one is hard to judge.

Now, wrongful termination data is pretty elusive, but here's a historical snapshot based jury verdict statistics and anecdotal research we've found:

• Employee lawsuits rose 400% between 1986 and 2006 to about 6.5 claims per 1,000 employees annually.
• Wrongful termination lawsuits rose 260% during that same period – and things have not gotten any better.
• The most common targets for Federal discrimination claims are private employers with between 15 and 100 employees (41.5%); private companies with an excess of 500 employees (23.9%); private companies with between 100 and 500 employees (18%)
• More than 50% of all wrongful termination cases are won by the former employee (up to 70% in some districts).
• Depending upon the situation, damages available to wrongfully discharged employees can include back pay, promotion, reinstatement, front pay, compensatory damages, required reasonable accommodations, injunctive relief, punitive damages, and attorneys' fees.
• The cost to settle an employment lawsuit grew from an average of $130,476 in 2001 to $310,845 in 2006 – and things have gotten worse.

Now this is only a small portion of the story …

Roughly, 96% of civil claims are settled before full trial. Meaning, companies are paying out to avoid the uncertainty of court judgements. These settlements could reach into the hundreds of thousands or more.

To make matters worse, the difference between a legal termination that stands up to the scrutiny of a lawyer, judge and jury – and a wrongful termination leading to a hefty award and black eye against your company is a paper thin line.

Some legal pundits claim there are more than 20 legal grounds for launching a wrongful termination claim …

… Do you know them all?

… Can you navigate all the legal landmines?

… Are you aware of the day-to-day management decisions that lead to these types of lawsuits?

In this litigious society you better, because it's the most difficult time ever to fire someone without backlash. Doing it correctly for the untrained is guesswork at best.

The slightest misstep can trigger a claim.. And often, the main culprit is the direct supervisor – and their ongoing management, documentation and handling of the termination meeting.

2 major reasons companies get sued for wrongful termination

For individual terminations (not layoffs, RIFs or downsizing), the entire process often falls on the shoulders of the manager.

Sure, Human Resources is involved, especially at the end. But they are not dealing with the employee every day.

Managers and their company tend to go wrong in these two critical spots:

1. Losing sight that the employee is a person

Have you ever been fired?

It sucks!

Doesn't matter if you knew it was coming or you were completely blindsided. The emotions range from surprise to confusion to rage to acceptance – and in the worst cases – to revenge. That feeling of being "wronged" and wanting retribution.

For individual terminations (not layoffs, RIFs or downsizing), the entire process often falls on the shoulders of the manager.

Here's the point:

Statistics show that most lawsuits for wrongful termination are filed by former employees who thought they were not treated with respect in their termination process.

Think about it. We are talking about people. With feelings and emotions that dominate their thinking and behaviors.

Contrary to what you may be thinking right about now, this is actually GOOD NEWS.

If a fired employee feels as if their manager and company treated them fairly and with compassion, dignity and respect – as painful as getting fired is – acceptance without backlash is the result.

This is 100% under your control!

But what often happens is the employee is dismissed like some cog in a wheel, and if they can point to even the slightest mismanagement or discrimination by their manager – watch out.

Some people have filed – and won – lawsuits for intentional infliction of emotional distress for the manner in which they were discharged. That leads to point 2 …

2. Tripping over the logistics

We asked the ResourcefulManager community what their burning questions and concerns are about terminating employees. The results were enlightening.

It's clear managers need help with the logistics and details of terminating employees, such as:

• What type of documentation is needed?
• How do you handle an employee who is completely surprised by a termination (despite all the coaching and feedback)?
• When should you keep working with the employee to try to gain improvement and when should you throw in the towel?
• How to do so without feeling like you need to check your car before you get in?
• What criteria determines if they leave immediately or have two weeks to wrap things up?
• Can't you fire anyone for any reason based on "at-will" employment?
• Should you have a witness at the actual termination? Should the witness be the same gender or ethnic background of the individual being terminated?
Get the Employee Termination Blueprint
• How do I terminate a person without making them feel like they are worthless?
• How to stop the conversation if you feel like you need help?
• How to deal with emotions during the termination – ideas for training supervisors?
• Legal aspects of terminating an employee?
• What time of day, shift, week should it be done?
• How long should the termination meeting be?
• Did I fail or did the employee fail to do something to get us to this point?
• How to greet the person at the termination meeting?
• How to do it while keeping the employee's self-image ok?
• What can I as a manager learn from a termination?
• What to say or not say?
• What action should be taken if the employee will not sign the paperwork?
• Do you need to provide the employee written documentation of the detail behind the termination?
• Does an employee have to sign anything at the actual termination?
• How to manage other employees' reactions after the termination?
Get the Employee Termination Blueprint
• Do you provide the employee details on why they are being terminated?
• Deciding at what point that terminating an employee is the correct thing to do?
• Do we need to let the rest of the company know?
• How to do it while allowing the employee to keep as much dignity and self-respect as possible, yet not appearing wishy-washy or unsure of the decision to terminate?
• What information should you have before calling the employee into your office?
• Should this employee be able to send a farewell email to colleagues and/or clients?
• Protection or actions in the event it goes bad?
• A checklist of what to do leading up to the termination.
• My company has a rigid termination policy, do I still need to be concerned with this as a manager?
• What words should not be used in the termination that could create an opening for a lawsuit or unemployment claims?
• When is severance required or recommended for a termination?
• How to handle all possible aspects?

Our editorial team has researched the best strategies, tactics and answers to many of those questions in the new ResourcefulManager Blueprint: