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IBA: How To Fire An Employee

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By Mark R. Waterfill

Would you rather get your teeth drilled or fire that problem employee? It is easily the most painful part of the employment process. The case law of employment claims is ripe with horrible stories of terminations gone wrong. The purpose of this article is to set out guidelines which can help to make the tooth drilling process a little easier, both for you and the terminated individual.

Take as much time to fire as you did to hire. The employer who decides to fire someone at 3 pm on Friday is making a terrible mistake. Never fire in a hurry, especially when you are angry. Take your time and plan both the firing decision and the means to do it.

Document performance to support the decision. Hopefully you have good documentation procedures in place already and have given the employee evaluations and warnings that the performance is sub par or that there is some other business reason for the termination.

Always tell the truth. If the termination is not for cause but because of a downsizing, then do not make up other reasons, tell the employee you have to downsize. However, if the reason given is that there is a downsizing, make sure that you are not looking to fill the position in the near future.

Fire the employee for what they admit to have done, not what is speculated to have happened. In almost every for cause termination situation there are facts that the employee admits which are sufficient to justify the action. Use those as the reason for the termination, not what is suspected. For example, the bank teller who admits that she failed to count the money before placing it in the bag will be fired for that and not for theft of the money which she adamantly denies.

Use a team to deliver the news. The team should consist of a person with authority to make the decision and one who can handle the details of the exit. It is often advisable to have a male-female team to handle the matter.

Consider using a termination letter. Indiana law requires a written reason be given for any termination. Moreover, the exit interview can be eased substantially by the use of a termination letter. The letter can set out a general reason for the action, and handle the details of the termination with an increased degree of professionalism.

Handle the money well. Know how much the employee is owed for wages, vacation, commissions, etc. By handing the fired employee an envelope with a check in the appropriate amount at the termination, you will substantially reduce the chances for lawsuit by a disgruntled employee.

Terminate in a neutral site such as a board room or conference room. Besides being more fair to the discharged employ, the neutral site is more flexible than the president’s office. The terminated employee may want to go over every detail of removing each nick nack from the office or go over other details that the company president doesn’t need to remain to discuss. By using the neutral site, these situations can be avoided.

Shut up. Termination interviews can be ruined by poorly stated oral presentations. You have labored over this letter which the employee is trying to read, so let them do so. The best terminations are when the employee reads the letter, shakes your hand and walks out the door, nothing more to be said. Don’t ruin it by talking too much. Also, don’t engage in debate. The decision has been made and there is no reason to continue a discussion on the point.

Consider a severance package. Many employees are looking for a “package” consisting of severance and other benefits. If you are willing to pay more than two weeks’ severance, you should have an employment attorney draft a complete severance and release agreement which complies with the Older Workers Benefit Protection Act. In the long run, you may save a lot of time and money by providing a severance package.

Remind the employee of any obligations to the company. In many states, including Indiana, covenants not to compete are enforceable even against employees who have been fired. Also, many employees know confidential trade secrets belonging to the company and they may not realize the liability they face for misappropriating those. It is good practice to remind employees of their obligations in the terminations letter.

Post-termination considerations. Do not follow all of these suggestions and then screw up the entire matter after the fact. Be aware that post-termination defamation and discrimination claims can be very expensive. Keep the circumstances of the termination confidential and instruct all others to do the same.

Firing an employee is, without question, the hardest part of management. However, by following these guidelines you might find what you thought would be a difficult termination turn-out to be as harmless as a visit to the dentist - with no cavities.•

Mark R. Waterfill is an attorney with the Indianapolis law firm of Benesch/Dann Pecar.

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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