Tips for Avoiding a Wrongful Termination Charge

It is often helpful to involve a lawyer in the termination process, in order to help with the defensibility of the termination from a legal standpoint. Does the employment agreement allow for termination without notice? Is a severance obligation triggered? Do certain facts give rise to concerns of a discrimination, wage, leave, tax, whistleblower or retaliation claim? Are there continuing obligations that need to be met by the employer or enforced upon the employee?

Be Understanding

Thinking about the outgoing employee’s immediate concerns is a constructive exercise that often facilitates termination planning. It is more challenging than ever to be unemployed, and reflecting on the human aspects of termination will always be helpful when preparing to deliver tough news. Take some time to consider the practical realities of the outgoing employee. Do you intend to challenge unemployment? You’ll likely be asked, so it’s best to make that determination before heading into the meeting. What about severance? Does potential legal exposure make obtaining a release of claims in exchange for severance a priority? In some cases, a little generosity and compassion on the way out can prevent significant trouble later on.

Be Direct

Employers often find themselves in trouble as a result of trying to avoid conflict. If you are reluctant about being candid in job evaluations or in identifying poor performance or unacceptable conduct as it occurs, an outgoing employee may protest that there was never any warning that his or her job was on the line. In wrongful termination disputes, an employer’s silence with regard to poor performance or bad conduct is frequently cast as proof that such performance or conduct was not the real reason for the termination decision. Being polite is counterproductive if it means that a judge and jury are left to wonder whether the termination decision was made for legitimate or unlawful reasons.

At the time of termination, both of you will benefit from speaking directly to the reasons for severing the relationship. An in-person meeting between a representative of the practice and the outgoing employee, followed by a written statement of what was said at the meeting, should be considered best practice. This discussion should not be a dialogue, however. A brief statement detailing the reason or reasons for the termination, the terms of separation and a statement of best wishes will suffice in most situations.

Being direct does not mean dwelling on every aspect of an employee’s poor performance. The termination meeting should be a low-temperature affair. The news should be delivered in a concise and measured tone. If possible, it should be conducted behind closed doors with two representatives of the employer to provide corroboration of the termination process in case it is required in the future.