Firing without Fear

Many Texas business owners and managers that I know are extremely authoritative and competent until it comes to firing an employee. Then the most confident bosses become fearful. Getting sued by an employee scares them and rightfully so. But times are tough economically and you may have to terminate some employees just to keep your business afloat. So how do you fire without fear of the legal fallout?

A “good” termination doesn’t happen overnight. I have often advised employers that even though quick, decisive action is needed, the employer may need as long as six months to fire someone if the employer hasn’t been diligent about policy-making, documentation and training before then. So before you can fire without fear, here are some preliminary steps:

  1. Make sure you have a great employee policy manual that is up to date and makes clear your expectations of all employees. Policies that clearly prohibit illegal harassment, discrimination, drugs, Internet pornography and violence, as well as strict procedures for reporting violations of these policies, can dramatically reduce your exposure in lawsuits.
  2. Training of your supervisors is essential to firing without fear. Day to day careless comments made by a first line supervisor often comprise the most damaging evidence in an employee lawsuit. Make it clear through training of every person with any supervisory authority that throwing an “Over the Hill” birthday party can indicate age discrimination, compliments about a woman’s clothes can be twisted into a sexual harassment complaint and grumbling about an employee’s reluctance to work on a Sunday can be perceived as religious discrimination. The behavior required of supervisors nowadays often defies common sense and human nature, so training is the only sure-fire way to know that your supervisors will not say or do something that the company will come to regret after a termination.
  3. Regular performance evaluations that honestly identify an employee’s short-comings are essential to a “good” termination for poor performance. No one should be surprised that he is being fired because at least a couple of prior poor performance reviews should have preceded the termination.
  4. Don’t fire anyone unless for disciplinary violations such as absenteeism unless you have warned him in writing at least a couple of times that his behavior is unacceptable. Those written warnings should include a plan for improvement and a statement that if his actions do not improve, he will be “subject to disciplinary action, up to and including termination.”
  5. Call your employment lawyer before you fire the employee. Your attorney will probably want discuss the employee’s entire employment to identify all the possible red flags that this particular employee’s record could wave. (Click here for a checklist for termination red flags when a Texas employee is involved.) Be prepared to send your lawyer your policy manual, the supervisory training records and the employee’s file for review. The lawyer may want also to talk to the employee’s direct supervisors to gauge any exposure there before advising you as to the wisdom of a job termination.
  6. Write a termination memo to give to the employee. It should briefly set out the policy violations that resulted in the employee’s job termination. This memo may be repeatedly scrutinized by the employee, her lawyers, the Texas Workforce Commission, the Equal Employment Opportunity Commission and even a jury, so it must be worded carefully. However, don’t skip this step out of fear. The memo will prevent the “he said, she said” exaggerations if litigation does ensue and keep everybody focused on the nondiscriminatory reasons that the firing occurred.
  7. Terminate the employee when you are calm and well-rested and you have another trusted manager available to be a witness. Make the meeting brief. Just hand the employee the termination memo and ask if she has any questions. Stand firm on your decision and don’t argue with the employee. Assure the employee that she can return to gather her belongings at a mutually agreeable time (don’t just give her ten minutes to pack up her belongings and then march her out under armed guard). Let her leave with some dignity and wish her well.

Leave a Reply

Your email address will not be published. Required fields are marked *