When letting an employee go for performance reasons, less is often more when it comes to what to tell the employee on their way out. However, not giving the employee an inkling as to why he or she was let go can potentially be worse than saying too much. The idea of just saying “it’s not working out,” and showing the employee the door, floats around HR circles – but can cause problems for employers.
If a terminated employee sues your business claiming he or she was let go for a discriminatory reason (e.g., because of the employee’s age, race, gender, national origin etc.), you would defend this lawsuit by demonstrating your legitimate business reason for the termination. That reason needs to be not only the actual reason, but a reason you can prove and, better yet, a reason the employee was aware of. This even applies in “at will” states. While at-will employers don’t need a reason to let an employee go—you do need that reason to defend a lawsuit.
Terminated employees are more likely to sue their employer if the termination comes as a surprise. This happens when employees are never told that their performance, behavior or attitude are not satisfactory and that continuing that behavior could lead to the end of their employment. Employees need to see the handwriting on the wall before you let them go. But in order for them to see it . . . you need to write on the wall with performance meetings and employee write-ups the employee reads and signs.
Then, at the termination meeting you can say something along the lines of “as you know, we’ve met with you several times about your attendance and told you what you needed to improve. You’ve gotten two write-ups, but we’re not seeing the improvement we need. For this reason, and because you were late again today, we’ve decided that it is best to part ways. This is not working out for the company. Your last day is today.”
Short. Sweet. To the point. The message at the termination meeting should be a brief recap of the reason the employee is being let go—which reason the employee should be well acquainted with. It should be the truth (do not try to spare the employee’s feelings; but you also can say it kindly). And, it should not be a surprise. When these guidelines are followed, termination meeting go more smoothly and the chance of an employee lawsuit can be lessened.
Unsure what to say or how to conduct a termination meeting? Our experienced employment lawyers can help.