Q: I have an employee who simply is not working out. I run a very busy, 10-person call center and we don’t have time for the distractions this person creates. While I have let people go before, I was wondering whether there are some things I should do to protect myself — either before or after I fire her.
Maryanne, Calabasas, CA

A: Coincidentally, I had to let someone go recently too. I can attest that it is not a pleasant experience. I do some legal work for a fairly new startup and one of the people we work with wasn’t making the cut. The president of the company asked me to break the news.

What few people understand, I think, is how difficult firing people is for the people doing the firing. It’s rarely as simple as “You’re Fired!”
No, the president of the company I work with was raised is a foreign country where firing people is not a part of the culture. He hated the idea of having to let this guy go. Similarly, the other people who knew what was coming down literally lost sleep over the actions we were going to take. Firing employees is hard on everyone.

When I broke the news to the poor fellow, he took it as well as can be expected. Within an hour he had packed up his stuff and was gone. What I know is that it could have been much worse. Because we had documented his transgressions several times, he wasn’t really surprised when the boom was lowered. And, maybe even more importantly, his reaction was subdued. Again, it could have been worse.
If you have to fire someone, I suggest you follow these steps to ensure that it goes smoothly:

1. Make sure employees know the ground rules: There should be two ground rules, at a minimum, for your employees.

First, they need to know what is expected of them and what their job is. What sort of hours are expected, what kind of results you expect, etc. I would have this sort of job description in writing. I would make the employee sign it and make a copy for both of you. That way, there can be no misunderstanding.

Second, I would make sure that every employee understands that they are considered “at-will.” An at-will employee can be fired at any time, for no reason. But “just cause” employees can’t — you need a just cause reason to let them go. What makes an employee “just cause”? Usually, it is some sort of employment contract or promise of continued employment.

I know it’s harsh, but I would have all employees sign a document acknowledging their at-will status. That way, it will be very difficult for them to come back and say you had no right to fire them because they were a just cause employee. A letter stating that they know they are at-will protects you.

2. Document, document, document: Even though you can let an at-will employee go for no reason (well, almost no reason — you can’t fire any employee for discriminatory reasons like age, sex, religion, color, etc.), it is still smart to document every transgression in writing. Give the employee a letter explaining what they are doing wrong and what they can do to reverse course.

What I am trying to do here is help you avoid a costly wrongful termination suit. The more you document, the less likely the suit.

3. Break the news gently: In most cases there is no need for an ugly confrontation. I know sometimes they can’t be avoided. But if they can, they should. A simple “it just isn’t working out” and a few “I’m sorrys” can make an unpleasant experience a bit easier on everyone.

4. Consider the worst case scenario: Before firing our co-worker, my partners and I seriously considered bringing in an off-duty security guard just in case. We decided against it, but it certainly is not an unheard of practice, especially in the corporate world.

I would also change the locks after the employee is gone, even if he turns in his keys. It’s a prudent move.

5. Follow up: Make sure you write a disengagement letter to the ex-employee after he is gone, handling any necessary housecleaning matters and reiterating what happened in the firing meeting.

Letting employees go can is a part of having employees and should be done in a way that minimizes your risk.

Today’s Tip:
Hate paying overtime? Most small businesspeople do. As you know, certain employees who work over 40 hours a week are required by law to get overtime. Why is that? I learned the interesting answer recently. The purpose is to create more jobs. The government figures that if you are forced to pay someone time and a half due to long hours, you may instead decide to hire a new employee and avoid that extra pay. Not a bad plan.

Breaking Up With A Bad Employee

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