Webinar: Five Termination Traps to Avoid

This session was presented on August 18, 2022

Presentation Slides

 

Is your termination process putting your company at risk? Discover five common mistakes employers make during a termination meeting and how you can avoid them. You’ll get practical tips for how to approach the meeting, how to conduct the termination, and how to communicate the employee’s departure to your organization. After this webinar, you’ll have the tools and guidance you need to effectively manage termination meetings.

Session Transcript:

Monica (00:03):

Hello, everyone. Thanks so much for joining us today. We’re really excited to welcome you to our training, Five Termination Traps to Avoid. Before we begin, I’d like to introduce myself first. My name is Monica and I’ve had roles as an HR generalist and a payroll and benefits manager at a large ski resort where I provided HR guidance to more than 500 employees and off boarded a number of them every year. I also have HR experience in the healthcare field and the nonprofit world prior to pivoting over to advising here at Mineral where I now direct our team of HR experts.

Kara (00:36):

And my name’s Kara. I am the senior legal analyst here at Mineral and I practice employment law for, I don’t know, a handful of years before joining the team and took a number of employment cases, that of course, almost always involved the termination. So, familiar topic for me as well. We are looking forward to spending the next 30 or so minutes with you today just to cover a couple of basic things. We will email you the recording and the slides within about a day so you don’t need to be frantically taking notes or anything. We will send you everything we’ve got.

Kara (01:17):

We do have both the Q&A box and the chat open today. The chat so you all can talk to each other. And we do have a question partway through the webinar that we’d love for you to answer in chat. And then Q&A, we will hopefully take a few minutes at the end of the webinar to answer any specific questions you have just for us. So, if you have questions just for myself or Monica, go ahead and use the question and answer or Q&A box for that.

Kara (01:44):

All right, so our agenda today, we’re going to talk about these five termination traps that we’ve sort of picked out. The first is a lack of lead up to the termination or the termination meeting. The second is dangerous reasons for termination that you need to be on the lookout for. Another problem is a meeting without a plan. And poor delivery of the news within that meeting. And then finally, mishandling the potential aftershock after a termination. So, that’s the traps we’re going to discuss today. I’m going to kick it over to Monica to get us started with a Lack of Lead-up.

Monica (02:21):

All right, so let’s start here. This is really the period before you finalize the decision to terminate. And even before termination is really an option for a particular employee, I have a couple of mantras in employment and the first relates to surprises. So, unless it’s a birthday cake or a bonus, people do not like surprises and surprises are especially off putting when they include bad news. Plainly stated, a termination should not be a surprise to an employee. And statistics show that most performance problems exist because the employee doesn’t know that what they’re doing is wrong. So, we want to spend a few minutes talking about how lead up helps us here by eliminating those unwanted surprises, thus reducing the risks associated with a termination.

Monica (03:07):

All right. Well, we work with a lot of clients who don’t talk to an employee about any of their performance behavior issues until things get really, really bad. And then they want to move to terminate the employee, which is fair, but we recommend against this, and here’s another mantra for you, Don’t Delay, Manage Today. So, the more promptly that you address an employee’s under performance, the better it will be for all parties involved. Progressive discipline looks different at each organization, and we actually don’t recommend including a firm step discipline policy in employee facing materials like your handbook or other policies or documents. Now, it’s really great to have a solid internal process for progressive discipline that you’re consistently following with all of your managers, all your different departments, but we don’t want to give employees the impression that they can only be terminated after they go through all three or five or seven disciplinary steps, whatever you’ve got listed.

Monica (04:09):

So, as you can see on the slide here, progressive discipline may take many different forms, including formal coaching meetings, could include documented disciplinary warnings, which we recommend, or even an unpaid suspension. And the goal of these efforts is to put that employee on notice that their behavior or their performance deviates from your expectations, clearly communicate your expectations, and notify the employee of the consequences if they fail to improve. Now, you’ll want to review your own internal company policies and your practices so that you’re aware of your options here and so that you remain consistent with them. Now, once you’ve proceeded to written disciplinary action, we recommend that you thoroughly document the conversation, your expectations, as I mentioned, and the consequences for failure and these documents should be signed by the employee as well as the best practice. Without a signature, you could be posed with a bit of a, he-said-she-said situation disputing whether that information was actually delivered to the employee. And then make sure that these signed documents make it into the employee’s personnel file.

Monica (05:16):

Now, your very last disciplinary communication should clearly notify the employee that failure to improve their actions will result in additional disciplinary action up to and including termination of employment. Then, if the behavior or under performance is repeated, you’ll move on to termination. And while that employee may certainly disagree with the decision, they shouldn’t be surprised by it.

Monica (05:40):

Now, while the focus of this section that I mentioned here is really about putting in the legwork before the termination. I do want to note that you may very well experience a situation when moving directly to termination is actually appropriate. And this could be the case when an employee is violent or perhaps they threaten violence toward another employee, or where there’s gross misconduct such as severe and pervasive harassment in the workplace. So, in situations like these, after you’ve investigated and reviewed the evidence, it’s likely appropriate to go straight to termination. We’re not passing go, we’re not collecting $200. And terminations for extreme conduct like these may not involve any prior conversations or an opportunity for correction on the employee’s behalf before we move to termination. But do be sure still to document why you took this express route to separation of employment.

Monica (06:34):

All right. So, that was our first trap to avoid when terminating, that’s skipping or skimping on the lead-up. Just make sure that you’ve laid the groundwork to move to termination without surprising an employee. And now, I’m going to hand it over to Kara to talk about Dangerous Reasons for termination.

Kara (06:50):

All right. So, next up, another big trap, and maybe the most obvious is terminating an employee for reason that is not particularly good or is perhaps even illegal. So, this can happen in a number of ways. Sometimes this happens because we hear a story from a different employee and we rush to judgment about what actually happened in a situation. It can also happen when we take a manager at their word and maybe don’t dig into what might be the real underlying reasons that they want to let someone go. And it can also happen when we’re using a policy violation to justify a termination that’s based on another reason. So, we’re sort of using the policy violation as an excuse. There are of course, other ways that you can get in trouble here, but those are three fairly common situations.

Kara (07:46):

So, hopefully in most cases, we do have a paper trail for why we’re letting someone go. But like Monica said, there are more extreme situations where we may need to make a termination decision pretty much on the spot. However, unless you witnessed the whole scene yourself, you need to do a bit of investigation. So, for instance, someone comes to you and says, “Adam just punched Bob in the face in the lunchroom!” Your first thought is, “I need to go fire Adam,” but let’s dig a little more. Maybe Bob hit Adam first. Maybe there was no hitting at all. Maybe Adam wasn’t even in the lunchroom and someone is just fabricating a story to try to get these two guys in trouble.

Kara (08:33):

So, maybe Adam and Bob are both going to be terminated at the end of the day. But, I mean, this is a ridiculous example, of course, but you’ll hear a story, you’ll immediately have a knee-jerk reaction about what needs to happen. Do make sure you are investigating, even if it sounds horrible. See if you can find some witnesses, see if you can find a video tape, see if you can find an email paper trail about the horrible thing that was typed to a client or whatever.

Kara (09:02):

You really do want to make sure that you can defend every termination decision that you’re making to an outsider should that terminated employee decide to go hire a lawyer the day after their termination meeting. A similar situation would be stealing. One employee comes to you and says, “Oh, Marsha’s taking twenties out of the cash register every night at the end of her shift.” If you don’t have video of that, don’t just take the employee at their word. They might be trying to get Marsha in trouble because Marsha insulted their outfit the day prior, or stole their boyfriend, or whatever the case may be. And with stealing in particular, we don’t want to be accusing people of things like stealing without backup, because that can get us into some potential defamation claims. So, we don’t want to go there unless we’re absolutely certain of it.

Kara (09:58):

And then another situation that comes up a lot is maybe you and HR hear that someone is suddenly having performance issues. Someone who you’ve never heard about having performance issues before and their manager wants to let them go or put them on a really short PIP or performance improvement plan. So, that bears looking into. Just because it doesn’t sound crazy doesn’t necessarily mean you shouldn’t look into it. If you’re the HR person or the big boss or the manager of many people, you do want to be on the lookout for illegal reasons that may be in play when you are being asked to terminate someone or be involved in a termination or bless a termination.

Kara (10:46):

Is the employee perhaps pregnant? Have they asked to take FMLA? Is it possible that they’re requesting Sundays off now? And that’s going to be inconvenient for the manager to schedule, and so they’re telling you that now they have performance issues. Are they complaining about their wages? Because that’s protected by federal law, which amazingly a lot of employers still don’t know, even though it’s been the law for a very, very long time. And then a final consideration, where they perhaps injured on the job? I defended my uncle in an unemployment insurance hearing a number of years ago. He was a delivery truck driver, and he’d unload the truck when he got to places. And one day, a pipe came flying out of the truck, smashed a bunch of his teeth out. Half an hour later, he called my aunt from the delivery truck, I think in a parking lot, to tell her, “Oh, I’m going to the ER. I had a bunch of teeth smashed out.” And by the end of the day, he had been terminated for making a phone call from the truck.

Kara (11:54):

Well, that’s pretext friends, and almost everyone can see through it. He was obviously terminated for being injured and all the pain in the butt the employer foresaw as a result of that. They thought they could potentially get out of by just terminating him. He did get unemployment insurance by the way. So, these are the things you need to be on the lookout for because they can most certainly come back to bite you. All right. So, we are going to go to a poll now.

Monica (12:29):

All right, thanks Kara. We’re going to pull up a poll. However, before I do that, I just want to reiterate that we will send out a link to the PDF of these slides and the recording within about a day of this webinar. I’m seeing some questions about that. So, I just wanted to double down. Okay, so our first poll, I’ve been curious about this for a while and I certainly hold my own recommendation in this regard based on my experience. So, when an employee is terminated for under performance, who attends that termination meeting. Putting the poll up now. Is it just their manager? Is it just HR? Is it manager and HR with the manager leading? We caught a typo there. Is it the manager and HR, but HR leads that meeting? Or is it something else? And if you select something else, we’d love to hear from you in the chat. We’ll keep an eye there. So, we’ll let this run for a couple more seconds. We’re seeing great participation. Thank you.

Monica (13:30):

Who’s part of that termination meeting under performance? Okay. I’ll give it five more seconds. All right. I’m going to go ahead and end the poll. And I have to say, let me go ahead and share these results. Okay, they should be out there right now. This is what I’ve experienced in my past and what I always recommend, that manager and HR hold the meeting. The manager leads it. Often, they’ve got that first hand account of under performance, but HR is nice to have there to support all of those kind of nuanced details, right? Like what offboarding is like, collecting equipment, all of those other good things. So, thank you. This is super helpful and I appreciate your participation.

Monica (14:23):

All right, let me pull that poll down and let’s go ahead to our next section which is the third termination trap is our having a Meeting Without a Plan. And I suspect we can all agree that there’s nothing enjoyable about the termination meeting, right? So, it’s really critical to have a plan for that meeting. I find this critical to avoid making this any extra awkward or adding any extra discomfort to the meeting.

Monica (14:51):

All right. So, for the meeting itself, let’s talk first when and where. Let’s go through some logistics. So, what is the best day and time to have this meeting? We want to keep in mind that we’ve got to balance any convenience factor that we might have of conducting the termination on a day that works for everyone with taking prompt action following that final offense. So, if an employee’s final tardy was on Monday, we don’t want to wait a week to terminate because it’s really convenient for us. We’ve already got the schedule. We really need them on. But it may make sense to wait until the afternoon or the following day.

Monica (15:29):

Now, there are good reasons to act quickly here. And in particular, we want to avoid allowing any time for one of those dangerous reasons that Kara just mentioned to creep in. So, for instance, if you wait a week to terminate that tardy employee or longer than a week, a couple of things can happen. So, first, you are very legitimate reason can start to look a lot weaker and more suspect because if it was really a firing offense, if it was really so legitimate, you would’ve done it right away. You wouldn’t have doddle, right? Now, the weaker your reason feels to the employee, the more likely that they’re going to go look for another explanation. And then the other thing that could happen is that in that period between the final offense and the termination, the employee could make some sort of announcement. We get this call a lot. I was going to terminate, and now they’ve said, fill in the blank.

Monica (16:23):

Perhaps they’re pregnant, or they’ve asked you for protected medical leave. Something like that. Or they get injured on the job like Kara’s Uncle did. Something like that happens in this span of time in between. So, if then when you finally get around the terminating the employee for their tardy or their performance like you should have done immediately following that offense, it’s going to look like retaliation and punishment for exercising one of those rights. Notifying you that they’re pregnant or that they need leave, et cetera. So, be prompt.

Monica (16:55):

Now, will the employee be expected to leave your premise immediately? My preference is to restrict an employee’s access to any sensitive information, which is probably going to take some coordination with your IT department, but then allow the employee to collect their personal belongings from their workspace and say their goodbyes. And it is generally best to avoid allowing the employee unsupervised time, but you’re really going to need to do what’s right for your company.

Monica (17:18):

Now, where will you have this meeting? For example, don’t have the meeting in a place that’s visible to other employees kind of like a fishbowl style conference room. No one wants to feel like they have an audience when they’re being fired. Now, these are all things that we recommend that you think through before the day of the meeting in order to make the termination as smooth as it can be. All things considered.

Monica (17:41):

Now, there are a couple of other meeting logistics to consider here as well. So, first, familiarize yourself with your state’s final paycheck laws. Some only require that final pay is issue issued on just whatever the next regularly scheduled payday is, while others require that it’s issued at the time of separation. And honestly, even when that’s not required by state law, I like to hand over the final paycheck during that meeting as it helps to finalize the relationship. You’re going to want to ensure that that final paycheck is provided in full for all hours worked, which includes those on the day of the termination and that it doesn’t include any unlawful deductions like withholding pay because the employee hasn’t returned the company uniform or laptop or whatever, or because they didn’t turn in their last time card. So, I can almost guarantee you that deductions like these are not permissible, but you will want to validate that with your state’s laws on the topic to ensure compliance.

Monica (18:43):

Now, if your state requires that vacation or paid time off, PTO, is paid out upon separation, you’re going to want to include that in that final paycheck. And if vacation or PTO payout is not required by your state, you’re going to want to go check two things, your company policies and what you’ve done in the past for others that were terminated, and we want to be consistent with those. Now, several states do have a required separation notices, including unemployment insurance information that also needs to be provided at or close to termination. It’s also just easiest to hand that over in the meeting. And then lastly, if you offer group health insurance and the employee was enrolled, you’re going to want to take care of COBRA, continuation of benefits options. Now, that’s not required at termination, but close thereafter. So, I just wanted to on your radar. All right, back over to Kara for Poor Delivery of the News as our next trap.

Kara (19:38):

All right. So, Poor Delivery of the News is really about how you communicate the termination decision. And I know when you’re having the termination meeting, it’s really compelling to try to smooth things over, make the employee feel less bad about the situation. Maybe even apologize for the termination. I know that that can just sort of happen reflexively, but you want to really have a plan going in to make it easier for you and to avoid saying anything you don’t want to say. So, let’s talk about how you can set yourself up for success here. I’m a big proponent of having a script. So, I think the more you write out exactly what you want to say ahead of time, the more likely you are to actually say those things and not extra things that might get you in trouble. Now, if you’ve already done a hundred terminations or 500 terminations, that might seem like overkill, but particularly if you’re fairly new to being involved with termination meetings, I would encourage you to really just go ahead and make yourself an outline about what you’re going to say.

Kara (20:51):

Human brains are really good at remembering the details of traumatic events, which this quite possibly will be for an employee. So, we want to make sure that what we’re saying is truthful and concise, because there’s a good chance it’s going to be remembered. In fact, the employee might even be recording the meeting. I’m not saying that’s particularly common, but it’s not very hard to hit record on an iPhone and record a meeting that’s happening, recording things that are being said. So, you just want to be really careful that the words coming out of your mouth are true and are not going to get you in trouble that you didn’t need to be in. So, to that end, don’t exaggerate the problems that the employee had with your organization. Don’t say things were worse than they were. The employee will almost certainly argue with you if you do this and that’s not going to benefit anybody in this meeting or make things go smoother.

Kara (21:49):

Same deal with minimizing the problem. Maybe you’re trying to go easy on them, help them walk away with their pride intact. Now, we do want their pride intact when they walk away. There’s no reason to make somebody feel worse than necessary, but we do want to be tactful and kind. However, they should know that they were terminated for a particular reason and that you, as their employer, could no longer tolerate that.

Kara (22:15):

We also don’t want to just tell them it’s a bad fit or sort of copped out of the whole thing by saying, “We’re an at-will employer. We don’t have to tell you why we’re letting you go.” There are good reasons for this. If you tell them it’s a bad fit, first of all, that smacks of bias. If you tell them you’re an at-will employer and you don’t have to give them a reason, or if you tell them it’s a bad fit, they’re probably going to fill in the blank with something else. Some other reason they’re being let go. If you don’t tell them it’s because you’re always late or it’s because you have an incredibly bad attitude and you’re disrespectful toward your manager and your coworkers and customers don’t like you. If you don’t tell them that, they might decide that you’re firing them because they’re gay or Muslim, or because they asked for Sundays off, whatever the case may be, right? So, do be truthful. Tell them why they’re being let go. It will almost certainly reduce your risk, assuming you had a good reason in the first place, which hopefully you did.

Kara (23:15):

Now, this could get heated. It could get tearful. Your job is to remain calm, stay composed. If they’re speaking loudly, you speak softly. If they’re getting wound up and talking really fast, you bring it back down by talking slower. Stick to your answers. That’s what the script and a little bit of practice is about. Go ahead and repeat yourself. Don’t feel pressured to elaborate. That’s where things can go get a little hunky. You should be prepared to answer a few questions, particularly if this is a surprise to the employee. Expect that they’re going to want some background information about why this termination is coming out of the blue. Great that if you’ve done all the lead up that Monica talked about, you’ve got the documentation. You’ve discussed their performance with them before, this shouldn’t be a surprise, and hopefully they won’t have a lot of questions and it’ll go pretty quickly and pretty easily.

Kara (24:16):

But again, if it’s a surprise, they may have questions. You should probably prepare to answer a few of them. That said, do be prepared to stop answering questions, because we don’t want to overshare. We don’t want to step in something. We don’t want to make it sound like the company has done something wrong by terminating the employee. Again, that’s why I recommend the script. Layout in your head what you’re going to say, and then don’t go beyond that.

Kara (24:46):

All right. We now have a somewhat more elaborate question that we would love for you to answer in the chat. We’re curious as to the answers and we think it might be interesting for you to learn from one another. So, this is post as three questions, but it will be helpful, I think, if you answer them all at once. In one chat answer so we can connect them all. So for you, what percentage of your termination meetings would you say go smoothly? What’s the leading cause of termination? Is it performance issues, bad behavior or theft? And then what industry are you in? And if you can put all those together, because if we only get your leading cause of termination in one box and your industry in another, we can’t sort of connect them, which is I, at least think, the interesting part.

Kara (25:40):

All right. So, oh, these are great. Oh, I love it. Thank you all so much for answering. Okay. This is going really fast so I’m not catching them. But it looks like a lot of like 80% or more go smoothly, which is amazing. I’m so glad to see that. 90%, 75%, somebody said a 100%, 99%. That’s fantastic. All right, cool. I’m going to let you guys keep answering that in the chat. That’s super interesting. I’m seeing performance. Performance is definitely the number one reason, which is good. Attendance is certainly popping up there too. Those are two that I would absolutely expect. All right, cool. All right. I’m going to hand this back to Monica now to talk about our next trap. You can keep answering in the chat if you want. Thank you so much for participating. We’d love to see that information.

Monica (26:35):

Yeah. Thank you. Great participation. All right. Here is our final mistake that we see employers make, or the final of the five here. And we want to shift the focus a bit from the employee who is being terminated to the employees who are remaining in the workplace. And it’s important to keep in mind that the employee who’s being let go isn’t the only one who’s going to feel the effects of their termination. Your other employees may be concerned about the safety of their own job, and may certainly have concerns about the direction of your team or the company. So, we want to spend a few minutes discussing this.

Monica (27:08):

All right. Now, how to communicate the termination to others on the team or at the company varies based on the organization and circumstances surrounding the situation. So, we encourage you to be as transparent as is appropriate to the team the employee was on considering the circumstances and without sharing the terminated employee’s confidential employment details. Okay. So, we’re striking a balance here and we recommend that you keep as much information confidential as possible so as to not disparage that parting employee, but you’re also going to want to provide truthful information. So again, it’s a bit of a tight rope walk.

Monica (27:43):

So, keep in mind when we have a lack of information to our employees, it’s unsettling to them. It’s likely to upset the workplace. And when no information is shared, this makes for some really awkward conversations. And really what it’s going to create is a rumor mill or some gossip in the company. So, when it could have been managed better just by providing a little bit of information.

Monica (28:04):

So, let me give you an example here. Let’s say that you terminated an employee for falsifying their time sheet. I just saw this come up in the chat. Someone’s falsifying their time sheet. Maybe they’re exaggerating their hours. Well, we want to be careful here. So, I wouldn’t want to share the exact truth with the remaining employees in a situation like this. I’m not going to say, “Well, the employee lied on their time sheet and we terminated them,” as this could get away from us in a hurry. Instead, I’d share, “Hey, we have company policies in our employee handbook. We have job expectations perhaps in the handbook or in our job descriptions for each of our employees.”

Monica (28:38):

So, revisit these things. And you’re going to remind your current employees that you follow your own policies, including exercising corrective action under that policy. And that under nearly all circumstances, the termination will not be a surprise to an employee. So, this is a nice way to provide kind of some context to your current employees by reminding them that you have policies in place. And thus that the terminated employee must have violated one or maybe several of those policies, but you’re also avoiding kind of a defamation spiral, right? We’re not giving out that detailed information. Then I really recommend turning the conversation to an employee’s own job performance and any areas for improvement or kind of any open discussion they’d like to have about their own position, not about the partying employees, but their own position.

Monica (29:28):

Now, after your termination meeting with the outgoing employee, I recommend communicating with your remaining employees as quickly as possible. Again, keeping the information factual and simple. So, if the team is small and close knit, that outgoing employee is likely going to tell their own side of the story to the rest of the team, which is another reason to treat the employee with respect on the way out. So, one way to communicate this is simply to tell remaining employees like, “John’s last day with us was yesterday. We will begin his a search for his replacement immediately. And in the meantime, maybe Jody and Tolu are going to be sharing his duties. And if you have any questions, come talk to me. My door is always open.” So, we’re keeping it super succinct and simple, but we are going to be prompt in our communication.

Monica (30:15):

Another aftershock consideration is if or more likely when you receive the former employee’s unemployment claim. And I saw a question about this and whether we have to tell them whether they are, will get unemployment and really that’s not our determination. If we need to communicate at all, based on our state regulations, we’re telling them that unemployment exists and that they can go apply. We’re not making any determination here, but I will say that we should keep in mind and keep in context here that most former employees will receive unemployment insurance. Again, we’re not telling this to the outgoing employee, but I just want you all to know so that we can kind of level set expectations. And this is true, even when they’re terminated, unless it’s for gross misconduct. Now, you might be thinking, well, heck a lot of them are gross misconduct, but this is actually a definition provided by your state’s unemployment division. And what we found is that in most cases it’s a really high threshold.

Monica (31:15):

So, once you receive a claim, you’re going to want to provide factual information in response to it. Now, with regard to the nature of separation, again, I recommend keeping this factual and simple. You’re going to note your company policy, the employee’s conduct or their under performance, and your attempts to notify them and correct their conduct or under performance. You can also go ahead and attach your disciplinary documentation to support your response. And this is another area where we do not want to exaggerate the situation, okay? Keep in mind that that former employee will be able to see your company’s responses to these claims and it’s another reason to keep it factual and succinct. Now, I should note here too, because we do get this question a lot and I saw something along the lines of this at some point early on in the chat. Terminating an employee during their introductory period, maybe your company has a period that’s 60 or 90 days or whatever it is, it will not prevent the employee from getting an unemployment or getting unemployment benefits, nor will it prevent any sort of claim that you wrongfully terminated them, okay?

Monica (32:27):

They have rights on Day 1, on Day 91, on Day 1001. So, that introductory period doesn’t impact at-will employment unless you’re in the State of Montana, nor does it impact unemployment claims. Now, as an aside, after an unfavorable benefits determination has been made by the state, so let’s say the state rules in the favor of the employee, you could go ahead and appeal that claim. You’ll really want to evaluate in this circumstance kind of the benefits of doing so. So, there are certainly situations where you may feel like you didn’t get your whole side of the story there, or it could be better supported with maybe an additional workplace policy or documentation of the disciplinary meeting that you failed to include the first go around. But you’re really going to want to consider the definition of misconduct or a gross misconduct, as I mentioned, it’s a high threshold and so appealing that claim might not be a good use of your time. So, just something to consider before doing so. All right. I’m going to hand it back over to Kara for some key takeaways. Kara, if you’re chatting, you are still muted.

Kara (33:40):

I knew at least once I would fail to take myself off mute. So, I saved it for the end. All right. So, our takeaways for you today is to, first of all, have a good reason for terminating someone. Make sure it’s not an illegal reason. Make sure you’ve documented it. We don’t want it to be as surprise if at all possible. Sometimes it will be a surprise if they do something crazy in the workplace, but then if they’ve done something crazy, they shouldn’t actually be surprised at the end of the day. Either make a plan and stick to it with respect to how you’re going to communicate as well as those things that you need to give a departing employee and then be truthful. You don’t need to necessarily tell 100% of the truth. Maybe you only tell 95% of the truth or 80% of the truth. Not every detail must be shared, but we certainly don’t want to get creative.

Kara (34:36):

So, those are our takeaways today. We’re going to go to Q&A. We’ve definitely got a few to answer. If you need to take off, we have reached the end of our prepared presentation, but we will pick off a few questions from the Q&A now. All right-

Monica (34:55):

Okay. I’m going to, oh!

Kara (34:56):

Oh, go. Go!

Monica (34:56):

I’m jumping in. I’m going. All right. I saw this come up a few times when I mentioned about having the employee sign the documentation of counseling or their disciplinary documentation and what if they refuse? Great question. Of course, this absolutely happens. I do two things. I would write on it. This is a good reason to have HR and a manager in disciplinary meetings especially if they are escalated. I wouldn’t do that initially. I’d let it be the manager and the employee initially. But as they get further down the corrective action path, I would have both there. It’s a nice way to have a witness, say employee. You could write right on the document, employee refused to sign.

Monica (35:33):

You could also have the employee sign, but say, “Hey, I disagree with this.” As another option, I like to round back after the meeting. I put in an email to the employee and I’ll say something like this, like, “Hey, as we discuss today, X, Y, or Z, and attached as the following.” I know that’s on a signature, but at least it’s proof that we got that out to them following the meeting. And you could even reference here are some of the things that we discussed together in the meeting. So, great question there.

Kara (36:01):

All right. I saw a question. If an employee is complaining about their wages, are we able to not give him a raise? So, I don’t know if that means a raise or promotion necessarily, but you shouldn’t take any adverse action against an employee who is complaining about their wages. That is almost certainly going to be protected by the National Labor Relations Act, which has been around for a very long time. I mentioned early on in the webinar that people shouldn’t be terminated for complaining about their wages. Likewise, you shouldn’t fail to promote them or change their hours or try to push them out or treat them badly or anything like that. That is a protected right. Someone else also asks, can we terminate an employee for trying to start a union? Nope, don’t do that. That’s also going to be covered by the National Labor Relations Act. So, good questions though. If you don’t know these things are illegal, they are good questions to ask because that is the kind of thing that can find you in a very deep, very expensive lawsuit.

Monica (37:10):

I saw one kind of comment back. This was a little less question. I think I saw something float by in the chat that said we have trouble getting managers to document things. I totally understand this. And ultimately, I know that this is going to be oversimplify this. Let’s make that part of their job success and their performance expectations, right? So, if you find that they’re coming to you and saying, “That I had this a lot. Hey, I want to terminate so and so,” and you’re like, “Wait a second. This is brand new news. I can’t believe all of this is going on.” Or you’ve had or had not had conversations. In my opinion, that’s an expectation of being a manager at our company and then let’s support them in doing so. It doesn’t need to be as hairy and scary to document this as managers often think, but ultimately it’s going to help everybody out, including the manager.

Monica (37:57):

Another question I saw float by was I think there’s something along the lines of our executive director likes to lead the termination meetings. I think there was even the word acts in there. They want to deliver the acts and is that okay or what would be the downside of doing so?

Monica (38:11):

Ultimately when it’s delivered by anybody that doesn’t have the direct first hand kind of experience or relationship or association with what has been going wrong, that’s where it gets more difficult. The employee’s going to be more likely to say, “Well, give me an example of this.” or “I disagree with that.” And so, that’s why at the very least, I’d like to have the manager or whoever it was that really kind of witnessed the wrongdoing, whether that’s under performance or conduct or tardies or whatever, available to speak to any specific questions that arise, but ultimately it’s kind of up to you who delivers that? We just want to make sure we’ve got the right facts. So that, as Kara mentioned earlier, we’re sticking to that script. We are consistent in our delivery and we’re not ad-libbing at that point in the termination meeting.

Kara (39:02):

All right, I see a couple good questions here. So, somebody asked, how can I encourage managers to address such issues before they get worse? You have to make this a requirement for managers. It has to be part of their job expectations. And if they’re not doing this, they should be getting talked to at their semi-annual performance evaluation about the fact that they are not documenting issues with their employees. So, it’s not really an issue of encouraging managers. It’s an issue of requiring managers because they’re putting the company at significant risk if they’re making these decisions without documentation.

Kara (39:45):

And then there was another one in here that says, if an employee requests a copy of the signed determination document, are they legally entitled to a copy of that document? Well, first of all, in a lot of states, they are. Many states require that if somebody asks for a copy of their personnel file, you provided within a certain number of days. Even if it wasn’t required by state law, though, I don’t know why you would withhold that document. It’s just going to irritate them and make them more likely to be mad at you and look for some reason to get you back and retaliate, which probably means hiring a lawyer and telling a story and making your life miserable. So, unless you’ve got a good reason to withhold documentation from a departing employee, I wouldn’t recommend it.

Monica (40:33):

I’ve still seen a number of questions, not still. I’ve seen a number of questions about the introductory period and its impact on the relationship. Here’s a good one. How would you phrase it if you terminate someone for failing their introductory period? So, in a best case scenario, that meeting at the end of the introductory period is not the first time that they’ve heard that they’re struggling or failing or underperforming. That kind of goes back to my point of like, “Don’t Delay, Manage Today.” When you see it, go talk to them about it. And I really do, deep in my soul, I believe that most underperformance is because the employee doesn’t know what you expect. So, I’d even go further upstream here. When you hire, did you have a good interview process? Do you have a clear job description? Is onboarding clear so that they know what in the world am I to be doing here.

Monica (41:21):

And then if they’re not doing it, did the manager meet with them and give some coaching, some redirection? So, ultimately if we’re doing those things and they’re failing it, we’re also not waiting till the end of the introductory period. We’re addressing it as needed, but just please know that the introductory period doesn’t provide any different safeguard for you as an employer. As I mentioned, the employee has rights on Day 1, 91. There’s nothing that all of a sudden changes about the relationship after that period. So, we’re going to go address underperformance or conduct or whatever it is, fill in the blank, whether we’re in that period or after that period.

Kara (41:59):

Yeah. Monica has now said it multiple times, but the introductory period has no legal meaning. None. As a lawyer, it has no… there’s nothing to it. There aren’t state laws that say something special happens with introductory periods or people don’t get unemployment insurance or that you can fire for any reason, even illegal reasons because they’re within their introductory period. Again, little asterisks for Montana. It’s got its own thing going on, but it is not more flexible. So yeah, just keep in mind that that introductory period is really just sort of a theoretical thing that is happening within organizations. And then I know we’ve been going here for a while on the Q&A, which I think is really fun. I will pick my last question now, because I’ve seen a few of you ask it. You said, “Well, what about terminating people for being a bad culture fit? Can we do that?”

Kara (42:57):

Well, yes you can. Right, aside from Montana, employment in the United States is at will. You cant fire for any reason that is not illegal generally, meaning based on one of those protected characteristics or protected classes. So, culture fit, bad culture fit. That’s not a protected class. You can terminate for that reason. However, it’s extremely squishy sounding, right? And sometimes cultural fit sort of goes back to some of those other things. Like let’s say you’re a Christian company, almost everybody who works for you is Christian. Maybe a lot of them go to the same church and you’re terminating someone who just doesn’t quite fit in. You’re telling them it’s a cultural fit. You’re not giving them a good reason related to their performance. They feel like it’s because they’re not Christian and they don’t go to church with their fellow employees. They could bring a religious discrimination claim on that basis.

Kara (43:57):

So, just vaguely saying cultural fit or doesn’t meet with our values or whatever is not great. It’s not illegal, but it’s not strong. So, if you can dig down on that, how do they not meet your values? Are they not collaborating with their teammates? Are they not over the top friendly with customers, if that’s something you require? Try to pinpoint the actual problem, as opposed to just using squishy phrases like cultural fit or doesn’t mesh with our team or something along those lines.

Monica (44:38):

All right, I’m going to pick my last one. I’ve seen a theme of how do we handle this with contract labor? And to be honest, I’m not sure contract labor is sometimes used in two different ways. We could be talking about independent contractors. Those are those that receive payment via 1099. They are distinctly not employees. So, if you’re going to terminate them, you’re going to terminate them according to the independent contractor agreement that you have. You treat them like an employee, you just turn them into an employee and it’s going to be very hard to defend otherwise. So, go back to that contract that I hope that you have when you hired them as independent contractors.

Monica (45:12):

If we’re talking about contract labor, like a temporary workforce, maybe we’re bringing someone through, someone on like a third party, we’re going to work with them to terminate and we’re going to address performance and conduct just like we would, but it’s going to be in partnership with whatever agency you’re getting contract labor through. So, I just want to answer that. I think sometimes contract labor can be used in those two different ways. So, hopefully that’s a helpful last answer. Thank you all so much. This was so fun to see your engagement, even among yourselves and learning from each other in the chat. So, we hope that you enjoyed it. And thank you again for joining. As we mentioned early on, we will send out the recording and the slides within about a day. So, have a great rest of your Thursday.

Kara (45:54):

Thanks everybody.

 

 

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