ILNews

IBA: How To Fire An Employee

Back to TopCommentsE-mailPrintBookmark and Share
waterfill-mark-mug Waterfill

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT