Monday, July 4, 2011

'You're Fired'—How To Say It Without Getting Sued

Terminations—they are never going to be an easy job, but no HR manager is going to go long without doing one. At least, says Attorney Julie Moore, you can do them without inviting lawsuits and in a way that makes it easier on you and the employee.

Moore's suggestions for handling the termination talk came at BLR®'s National Employment Law Update held recently in Las Vegas. Moore is president and founder of Employment Practices Group in North Andover, Massachusetts.

"You're fired" — The Lay-Off

For financial reasons, the company has decided to implement a reduction in force, and affected employees need to be told that they are being laid off.  One employee, David, is in a protected class as a male over 50 years of age who has been with the company for 13 years.

The single most important facet of communicating to an employee about to be laid off is consistency across the board for all affected employees, says Moore.  Invariably, each employee will want to know "Why me?" and will be suspicious of being singled out from all the other employees who retained their jobs.

The layoff discussion is the ideal situation for working from a script to ensure that consistency, Moore says.  Your communication should be short, concise and clear, and it should include certain components:

  • A statement that David's position has been eliminated, and no suitable alternative job is available
  • A statement emphasizing that the reduction in force is a financial decision and is not a reflection of David's performance or any other personal factors. Decisions were made based on finances and workload coverage.
  • An explanation of any benefits, vacation time accrued, severance, and date of termination.

What You Don't Say 

  • Don't mention other employees' situations, position, age, race, seniority
  • Don't talk about the fairness of the decision or say anything other than supportive comments, such as "I know this is upsetting." 
  • Don't deviate from the script or engage in additional dialogue. 

And listen! Says Moore.  If David expresses concern about discrimination, for example, pay close attention, take notes, and be sure to follow up

Do's for the HR Professional

  • Review relevant policies beforehand—performance expectations, workplace conduct, discipline, termination
  • Research!  Personnel files, emails, supervisor's satellite files, comparator information, etc.
  • Stay current on the laws
  • Seek additional legal advice if you're unsure or if the situation is potentially litigious — think protected categories, protected activity, public policy
  • Enlist a third party in potentially litigious meetings
  • Ensure that benchmarks and behaviors are measurable
  • Ensure that criteria are well-documented
  • Ensure that the decision-making was fair, equitable, and non-discriminatory or retaliatory—including the impact
  • Address employees one-on-one, in person
  • Explain the criteria for the selection process
  • Anticipate objections
  • Listen, and make notes of comments and questions from the employee
  • Be sure that new managers or managers who have never handled this particular situation receive coaching and role-playing if necessary

Dont's for the HR Professional

  • Don't forget the need to document, document, document
  • Don't be ambiguous or consider termination to be a negotiation
  • Don't neglect to understand the need to maintain composure—balance business needs and human compassion
  • Don't deviate from the message

In tomorrow's Advisor, how to handle the other typical type of termination—for cause—and an introduction to a new webinar just for HR managers in small departments.

Thanks to Steve Bruce / HR DailyAdvisor

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