In the 2009 movie Up in the Air, George Clooney and Anna Kendrick play corporate downsizers—HR consultants that companies across the country hire to terminate employees for them. The practice wasn’t exactly common at the time, and fortunately never took off, but it was believable.
Terminations are nerve-wracking. You’re doing something that will cause another person incredible stress and financial hardship. It’s not easy to do, even when it’s deserved.
Nothing you can do will make terminations entirely stress-free. But terminations are often far more challenging than they need to be. So no, we don’t recommend flying in Anna Kendrick and George Clooney to conduct your terminations, as tempting as that may be. But good preparation and the right attitude will make a big difference. So here are four general practices we do recommend.
Know Your Compliance Obligations Ahead of Time
Before conducting a termination meeting, look up applicable laws regarding termination procedures and paperwork, accrued paid leave, severance pay, COBRA, and final paychecks. If you’re laying off many employees, you may have specific notice obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) or similar state law. You don’t want to miss any steps or deadlines. If the employee works in a different state, refer to that state’s laws.
You should also understand how antidiscrimination laws work in practice and take steps to reduce the likelihood that the terminated employee will file a discrimination claim. For example, while at-will employment allows either the employer or the employee to terminate the employment relationship at any time, with or without notice and with or without cause, it does not permit you to terminate employment based on the employee belonging to a protected class (e.g., race, sex, religion, national origin).
Along similar lines, screen the termination to ensure it’s not based on a protected activity. Myriad state and federal laws protect employees from being discharged for specific reasons. For example, Section 7 of the National Labor Relations Act entitles employees to talk about their wages or complain about working conditions with each other. A handful of states prohibit employers from terminating employees for engaging in lawful activities outside of work. Reporting unsafe working conditions is protected. And don’t forget about the many leave laws that vary from state to state: from sick leave to military leave to school involvement leave and more, you may be surprised by the types of absences that are protected.
There’s even some risk when the termination is for cause. For example, a terminated employee could claim your reasoning is just for show, and they were actually terminated for an illegal reason. That risk grows exponentially when you don’t provide the employee with a sensible reason for the termination or when you’ve been inconsistent in applying your discipline policies.
Consequently, the safest way to terminate employees is to communicate performance issues, give them a chance to improve, and have documentation that justifies the legitimate business reasons behind the termination. This documentation would include policy violations, instances of poor performance, and any disciplinary or corrective action taken. The documentation should indicate that the company communicated the issues to the employee. The more you can show you had a legitimate business reason and allow them to improve, the harder it will be for an employee to fill in the blank with their illegal reason for termination. As a result, the termination will be less risky, and you’ll feel better about the decision because you treated the employee fairly.
Approach Terminations with a Positive Mindset
Painful as they are, terminations can be a good thing. Yes, even for the terminated employee. Let’s say you have an employee who’s continually struggled to meet your performance expectations. Guidance and training haven’t proven fruitful. No amount of coaching has or would enable them to do the job better. There’s no other job in your organization they could do. So now you have a choice. You can keep them on, tolerating subpar performance and accepting its consequences for your organization, or you can let them go. In this case, letting them go is probably the better option for both parties.
You’re not doing this struggling employee any favors by keeping them in a position where they can’t be successful. You’re also setting them up for failure in future roles. Months or years of experience listed on their resume may help them land a future job, but if it’s a job they actually can’t do, their future employer will have the same choice you’re facing. And the employee will be no better off.
This employee has their own hard choices to face. They may need to develop skills beyond what you can provide, rethink what kind of work they’re suited to do, or make better choices about their future. Whatever the case, if you allow them to coast along, they’ll never thrive. Termination is in the employee’s best interest in these types of situations. Of course, we wouldn’t recommend telling the employee this, but it’s something to keep in mind when making this difficult decision.
In the case of layoffs, where the employee is not at fault, figure out a few ways you can help them land on their feet. Provide a severance if that’s an option. Remind them that they can apply for unemployment. Help them update their resume. Inform them of any opportunities you know about and facilitate networking connections if you can. In short, make the layoff meeting a productive discussion about their future. That’s going to be a hard discussion, and it’s possible the employee won’t want to hear it. You can honor that too.
Be prepared for strong emotions like sadness and anger during the termination meeting so that you can respond with confidence. While there’s a fine line between allowing space for initial processing and unnecessarily prolonging the discussion, you can acknowledge and validate the employee’s feelings without changing the result. Although escalations into violence are rare, review your company’s procedures for dealing with such situations ahead of time.
Don’t Let Terminations Be a Surprise
Have you ever gotten an email from a boss saying something cryptic like “We need to talk”? You may immediately begin to worry. Are you in trouble? Are you getting fired? Until you have that talk, you can’t breathe a sigh of relief.
Why would your mind go there? It might be because you’re unclear about what could get you into trouble at work, and you don’t feel safe. Vague out-of-the-blue messages are seldom a good idea. They’re a terrible practice when people believe they could realistically lose their job for unknown reasons. That belief puts people on edge, allowing them to assume the worst when their manager reaches out without context. Unfortunately, surprise terminations encourage everyone to adopt that belief and incentivize a culture of fear.
Terminations should never be a complete surprise. So yes, at-will employment allows you to terminate employment for any reason or no reason (as long as it’s not an illegal reason), but please don’t fire someone for any reason or no reason.
Clear rules and consistent practices are your friends here. Inform employees what’s expected of them and what could result in their dismissal—the employee handbook is an excellent place to do this. Enforce your rules consistently, not willy-nilly. If you let employees get away with policy violations but then suddenly switch to strict enforcement, you’ll only create confusion and fear. You don’t need to follow the same process for every kind of offense—some behaviors may warrant immediate termination, for example. But don’t bend the rules for some employees and not others.
A coaching culture can also be your friend, especially with employees struggling to perform to expectations. Suppose managers regularly work with employees to improve their performance and skills. In that case, they’re in a good position to spot signs early on that a struggling employee may be more successful and happier doing something else. Good coaching sometimes means guiding an employee out of the organization. A loss is a loss, but guiding employees toward more suitable work elsewhere is usually much smoother and less disruptive than an involuntary termination. Plus, they leave with goodwill towards you. In situations where termination is the right call, if managers have had conversations with employees ahead of time about the consequences for failing to improve, they’ll have softened the blow when it eventually comes.
Lastly, don’t hide bad financials from employees. If the business is slow and a layoff is possible, employees need to know to make informed financial decisions and contingency plans. They’ll be extra angry if they feel they’ve been lied to or misled. In an age where companies go viral on the internet for poorly conducting layoffs, it’s in your interest to be transparent and honest.
Develop a checklist ahead of time of things that need to be covered. This list might include specific equipment and keys that need to be returned, passwords and access cards that will need to be disabled, coverage of the employee’s workload until a replacement is hired, notification to coworkers, vendors, and customers, COBRA information, a current address for W-2s, and what you’re going to say during the termination meeting.
Checking off boxes may feel impersonal, but at the very least, the day of termination is challenging for all involved and, at worst chaotic, especially if you’re disorganized. Keeping the process smooth and orderly is both kind and professional.
Dr. Patrick K. Collard is the Managing Member & Evidence-based HR Consultant for trustHR | GObackgrounds (San Diego, CA and Brookfield, WI). He has over 30 years of experience as a human resources consultant. He holds a Bachelor of Arts in Law and Society and a Master of Human Resources and Employment Relations with a concentration in Employment and Labor Law from Penn State University. Dr. Collard earned his doctorate from the University of Maryland Global Campus. He defended his dissertation – Recruiting the Untapped Talent Pool of Hiring an Employee with a Criminal Record: A Systematic Review. Schedule a Discovery Call with Dr. Collard at – https://calendly.com/patrickcollard/discovery-call