Managers are often tempted to "sugar coat" the reasons when an employee is terminated for poor performance, particularly when hard economic times support the contention. But, according to attorney Allen M. Kato, a partner at the San Francisco firm of Fenwick & West, LLP, this could turn very sour if the employee is inclined to sue.
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Download Now“If, at the time of discharge, you told the employee, ‘You are being laid off. It has nothing to do with your performance.' If then you turn around at trial and say it was ‘poor performance,' don't be surprised if the jury doesn't believe you,” Kata said. His remarks came during the 2009 California Employment Law Update this week in San Francisco, hosted by the Employer Resource Institute, a BLR subsidiary.
The employee's attorney will try to embarrass you by “proving” that you and the company “lied” by showing that the reason given in court was different than that originally given. This is particularly damaging if the employee was replaced. “Don't expect juries to be sympathetic,” he said.
“If I'm litigating on your behalf, I can fight this ‘proof,'” Kato joked, “but you don't have to make life harder for me.”
Kato said that terminations are an area where HR can have a big impact. A mistake can create serious legal liability. Kato's remedy: above all else, train managers. Don't allow them to say anything that isn't true. Explanations should be honest and concise. They don't have to be detailed. For example, they can simply say, “'Performance was a factor." They don't have to say anything else.
Rules of Thumb
He also offered some brief rules of thumb for terminations.
The Do's
Managers should:
- Allow around 10 minutes for the meeting (but don't seem rushed).
- Briefly explain the reason for the termination.
- Explain final pay and any severance benefits that are being offered
- Explain continuing obligation to protect trade secrets and other exit issues.
- Offer to answer any questions
The Don'ts
- Don't argue with the employee
- Don't bad mouth the company
- Don't suggest the decision was unfair
- Don't inaccurately give hope for re-hire
- If performance played a role in the employee's selection (for layoff), don't suggest otherwise.