Termination Guidelines

There often comes a point in the employer-employee relationship, where the relationship begins to sour. The employee may not be performing up to the standard expected, may be having behavioral problems or is simply unable to perform certain tasks. Even when an employee is performing well, your company may need to downsize and terminate an excellent employee.

Terminating employees is never a pleasant task, but with the guidance below, your company can avoid the employment landmines during the termination process.

Do not fire an employee in anger. This may seem obvious but, in the heat of the moment, self-control is paramount. Before discharging an employee, take time to evaluate the decision. A cooling-off period may not change one's mind, but it will provide time to evaluate the decision and plan the termination.

Follow policy. If a company has written employment policies, including termination procedures, managers should follow them consistently.

Document the reasons for discharge. An employee file should provide a meaningful history that explains the dismissal. Whenever a termination is not documented with warnings or efforts to improve employee performance, a likely conclusion is that there was an improper motive for the decision.

Be truthful. An employer may be tempted to soften the blow by telling an employee that the company is cutting back when in fact the employee's performance is unsatisfactory. Then, when the employer takes steps to replace the employee, these actions cast doubt on the employer's credibility.

Offering a severance package. A severance package requires careful consideration. It may buffer the employee's transition and reduce the level of animosity likely to lead to litigation. Any severance agreement which is contingent upon a release of claims against the employer should be drafted by an attorney otherwise an improperly drafted release may have no legal force.

Include an observer. Termination should be conveyed in person. Because termination interviews are fraught with emotion, an observer should be present. One person can communicate the decision while the other takes notes to document the meeting.

Use a termination letter. Rarely is a written explanation for a discharge required by law. Drafting a termination letter, however, allows time to carefully think through what is said and how it is said. The termination letter should be delivered to the employee upon termination and should convey the decision to terminate and a general statement of the reasons.

Be respectful. Termination proceedings should be handled with as much tact and consideration as possible, regardless of the reason. It may be helpful to use a neutral location, such as an empty office or conference room. If the meeting is insulting and disagreeable, the likelihood of legal action increases.

The guidelines above are not a complete statement of legal advice when terminating an employee. As every termination situation is unique, please contact General Counsel, P.C. to discuss how to properly terminate any employees prior to taking any adverse actions.