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Jul 14, 2016

With terminations, it's all about reducing risk


Category: Employment

I have to say, I love SHRM. They have lots to offer, from updates to forms to webinars, but they also have some great articles that I generally find to be quite practical. I recently saw a link on an email alert about an article on How to Fire Someone Without Getting Sued. This article is by far the best I've seen on the topic, offering practical tips but also driving home the point I always like to make which is that it's all about reducing risk. The author talks about issues that increase and decrease risk, as well as steps to take to decrease risk to the employer. It's a mix of being aware of the laws, doing the right thing, and acting thoughtfully (when you're really angry at an employee is not the right time).

Here is a list from the article which provides a rough summary of what to do: 

10 Steps to an Effective Termination
  1. Be transparent about your company's termination policies.
  2. Begin the documentation process as soon as you notice a pattern of negative performance or behavior. Encourage management to avoid charged language and to stick to what's observable.
  3. Determine if any protected factors pose a particular risk if the employee were to be terminated.
  4. Work with management to rapidly reach a consensus on whether and when a person should be terminated.
  5. Create a time frame for termination that aligns with your company policy.
  6. Schedule the last meeting and prepare any paperwork, including an explanation of benefits and the final paycheck.
  7. Have the employee's manager lead the final conversation, which should be brief and to the point. HR should provide paperwork and logistical support.
  8. Make sure that, before the employee walks out the door, his electronic and physical access to the workplace is disconnected.
  9. Provide the employee with options for cleaning her workspace outside of normal business hours.
  10. Treat everyone involved with dignity and respect.

If you want to read the rest of the article (which is worth doing), go here 

On pointer No. 10 about treating everyone with dignity and respect, I especially agree. As I often say in seminars, use the golden rule and you'll manage to reduce risk significantly because not only will you avoid acting in haste but you will reduce the number of employees calling legal counsel because they are so mad at how they've been treated. Not always, but most times, you are more likely to be cut some slack by an employee who feels that they received transparent, fair treatment.

Finally, having been at the Maine Human Rights Commission this week, I can say from personal observation that documentation is also key. The employer who documented all the warnings and coachings and gave the employee a chance to add her own comments won. The employer who did all their write-ups on the day of termination, including for alleged conduct more than a month earlier, lost. Worse, the conduct that that second employer claimed at the hearing was the "straw that broke the camel's back" was not in any of the warnings done on termination day.

Happy reading. Let us know if there are particular topics that you would like to see covered!


This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone). Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.