Why Honesty is the best policy in terminations

by Michael Haberman on March 13, 2014 · 0 comments


 

If you are terminating an employee tell them the real reason for their termination.

If you are terminating an employee tell them the real reason for their termination.

I have often run across companies that want to soften the impact of firing someone by offering them the opportunity to “voluntarily resign” rather than have a termination on their record. In other situations employers are “eliminating a job” or having a “layoff” or some other action to blunt the perceived impact of firing an employee. In reality no one is being fooled or will feel better about themselves and it may get you the employer in trouble. Here is what I mean.

Voluntary resignation

When you approach an employee because you are unhappy with their work you need to fess up and tell them. There should have already been numerous counseling sessions where you have been trying to get that employee to change. Sometimes it just doesn’t work. You need to get rid of them but rather than firing them you offer them the opportunity to resign. This is generally done for two reasons. First you genuinely feel they will feel better and save face by doing so. Or secondly you are a tightwad SOB and don’t want them on your unemployment record and you think that by coercing them into a voluntary resignation they will be denied unemployment. Sorry but both methods are bullsh*t.

In the first instance nobody really saves face by resigning. You only volunteer to resign when you have some other place to go. If they go out and are job hunting and tell people they resigned who really believes them. I never did. They are either lying or they were an idiot. (Yes there are cases where a situation is so terrible that the person needs to just leave for their own sanity.)

If you are an employer and you have done what you needed to do in trying to improve the employee and it did not work then terminate them for performance reasons. Have your documentation. Allow them the opportunity to learn from that lesson that performance matters.

In the second instance the guise of voluntary resignation only works until the now terminated employee goes and tries to collect unemployment. When told they are ineligible they will then change their story and state they were really going to be fired and now you have a situation of constructive discharge. You end up testifying in a hearing and are made out to be a liar. Be honest.

Job elimination

Often employers “eliminate a job” as a way of getting rid of an employee. In reality they are not eliminating the job and often backfill the position within a short period of time. The ex-employee hears about this and starts thinking about why they were let go. Typically they reason they come up with is related to some protected category and not to their performance. If it is truly performance tell them so. As the folks at WeComply stated in their article 10 Strategies for Avoiding Retaliation Claims, Be honest with employees about the reason for disciplinary action or discharge to avoid misunderstandings that could lead to retaliation claims. For example, if an employee is told he is being discharged because of job elimination — but is actually fired for poor job performance — and the position is re-filled shortly thereafter, the employee may construe the stated reason as a pretext for unlawful termination.”

Conclusion

In my opinion no one is ever done a favor by “soft-selling” the reason for a termination. In particular it is not in the business’ best interest to do so. The potential risks of lawsuits just is not worth it. Of course if you are going to fire someone for performance then there had better be some measure of that performance and the documentation to back it up. As Shakespeare said “There is the rub.”


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