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How to Conduct a Termination Meeting that Won’t Invite a Lawsuit

What to say (and what not to say) to a departing employee

Posted by Dawn Lomer on March 26th, 2013

Wouldn’t your job be easier if you could fire an employee by e-mail? Or by text message? How about leaving a post-it note on their computer? After all, it’s the face-to-face conversation, the breaking of the bad news in person, that makes terminations so difficult.

How you break the news to an employee can be the determining factor in whether or not they file a lawsuit.
How you break the news to an employee can be the determining factor in whether or not they file a lawsuit.
Unfortunately, it’s also the face-to-face conversation, when handled badly, that can lead to a lawsuit. So it’s important to be prepared for the difficult task and to deliver the news according to basic rules of legal and business etiquette.

Planning

Before you schedule a termination meeting, you will have already done the following:

  • Ensured all documentation leading up to the termination is complete and in order
  • Consulted with HR and the company’s employment attorney
  • Evaluated any physical risks that the confrontation may pose
  • Planned what you are going to say and how you will respond to questions
  • Determined the logistics of getting the employee out of the building (ie, do you escort the employee to his or her desk to collect personal items or arrange to have them delivered, etc.)
  • Arranged for another person, possibly from HR, to be present in the meeting

How to Start

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How you break the news to an employee can be the determining factor in whether or not they file a lawsuit. It’s best to get straight to the point, with a statement such as: “We are meeting today because we need to let you go.”

Beginning the meeting with small talk is misleading and can give the employee false hope. A straightforward, professional approach reinforces the fact that the company treats employees with dignity and respect.

What To Say

“When you tell an employee he or she is being terminated, it is generally a good idea to state why – but only if the statement is truthful,” says Cynthia Calvert, employment lawyer, principal and founder of Workforce 21C. “While some employers believe that stating reasons for termination is bad policy, letting someone go without explanation allows him or her to assume a discriminatory reason.”

If a termination is due to an employee’s poor performance or to workplace misconduct, state the facts simply, summarizing the job-related reasons for the termination. The employee may not like it, but there should have been a well-documented HR investigation or progressive discipline leading to this point that leaves him or her nothing to dispute.

“A short, honest statement that focuses on the employee’s actions and not on the employee’s characteristics is the best way to prevent a lawsuit. It can be difficult to say something negative, but resist the urge to soften the blow by giving a reason that isn’t truthful,” says Calvert.

Allow the employee to defend him/herself and wait patiently if there is an emotional response. But stick to your plan and your reasons stated for the termination.

What Not To Say

Avoid using harsh language or being overly critical of the employee. Stick to the facts and your plan. Saying too much can get you into trouble.

Just as importantly, don’t sugar-coat the termination or downplay the problems with the person’s performance. Avoid shifting blame or trying to make the person feel better by softening your stand.

“Employees’ lawyers love to point out inconsistencies in employers’ reasons for termination, and you will regret it deeply if you tell the employee one thing, the unemployment office another, and respond with a third in your answer to the employee’s lawsuit,” says Calvert.

 


Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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