26 Mar Managers: 7 Tips For Contentious Employee Terminations
Reprinted from: Forbes.
In last week’s blog I provided seven tips for laying off good employees when a company must downsize to lower costs. This week, I have shifted the topic to terminating employees due to contentious reasons, such as misconduct or poor performance.
If you haven’t already read last week’s article, I suggest you read it now and then come back to this blog. The foundational tips for laying off a good employee due to downsizing, discussed in my last blog, are just as important (sometimes even more so) when you are faced with a contentious termination. There are also additional aspects you’ll need to consider to protect the employer, other employees, and the employee being terminated.
To explore how to handle contentious terminations, I again spoke with HR expert Steve Barker, the Global Managing Director of Human Capital for Resources Global Professionals, and Jeffrey Gilbreth, Labor & Employment Partner at Nixon Peabody LLP. Here are seven tips to consider before you fire an employee:
Tip #1: Does the employee pose a threat to the workplace and/or himself/herself? Workplace violence is a major concern for most employers, and the potential for violence increases whenever there is a contentious termination of employment. “If an employer has any inclination or concern that the employee who is being terminated poses a security threat, steps should be taken immediately to address that issue before notifying the employee of the termination,” warns labor and employment lawyer, Jeffrey Gilbreth. “Such steps may include conducting a threat assessment to determine how serious a threat the employee may pose, hiring security to attend or be strategically placed nearby the termination meeting, and/or having additional security at the workplace in the days/weeks after the termination occurs. Additional considerations should be given to the location of the termination meeting and which employer representatives attend the meeting.”
Tip #2: Does the employee pose a threat to trade secrets? Most contentious employee terminations don’t result in any form of workplace violence. However, the departing employee could compromise trade secrets. “What does occur, more often, is that the departing employee walks out the door with customer lists, contact information, software, product/pricing information, and other trade secrets that belong to the employer,” Gilbreth says. Because the employee may have this information in his or her possession at home through their normal, daily work for the employer, Gilbreth warns employers to carefully prepare for the termination: “The employer should think about how to protect/recover its trade secrets. Disconnecting the employee from the employer’s systems during the termination meeting is one step that can be taken, as is taking possession of the employee’s smartphone (if it is company issued – a personal device used for work poses other issues).” Because it can be more difficult to obtain company information that the employee has in his or her possession at their home or other offsite location, Gilbreth says employers should try to obtain that information from the employee, if possible, before informing the employee of their termination.
Tip #3: Document, document, document. Employers and managers should always carefully document all termination decisions, but this becomes even more critical when the employer is concerned that the employee to be terminated could file discrimination or other wrongful termination claims. “Documentation of the employer’s thought process and reasons for termination is critical in defending such a claim,” states Gilbreth. “Another step managers/employers should always take is to document, through a date stamped email, when the termination decision is made. Without that date-stamped documentation, an employer could face a tough defense to a retaliation claim if the employee engages in ‘protected activity’ between the dates the employer made the termination decision and communicated that decision to the employee.”