Bankovich & Pauli: Worker performance and terminations — Hasta la vista, maybe?

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By Candace A. Bankovich and Celia M. Pauli

Contrary to the way “The Apprentice” depicts termination with the simple uttering of two words — “You’re fired” — terminations require much more planning and preparation. While some terminations may be conducted immediately out of necessity, most should be the final step of performance management. Methods for addressing an employee’s inadequacies can range from coaching to verbal warnings to written warnings to performance improvement plans (PIPs). If feasible, a good practice is to implement a PIP prior to termination. A PIP does not always result in termination and instead could be the tool to help a non-performing employee become high-performing.

When considering a PIP, the manager should prepare a list of the employee’s issues and include specific examples. The issues should be more detailed than simply “not following procedures” or “not meeting expectations.” Think of it this way: the manager is going to meet with the employee to explain performance issues, and the employee is going to have questions. Concrete examples are critical to helping the employee understand.

The PIP should also include specific and measurable objectives and timelines tied to the identified issues. As part of this process, the manager should question whether the employee has received adequate training and has tools to successfully do the job. The PIP should include both resources for improvement and consequences for the employee failing to meet the criteria or timeline.

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When implementing the PIP, the manager should listen to the employee and be open to his/her suggestions; however, listening does not require the employer to engage in a debate, which we do not recommend. But for example, maybe the employee reveals that he/she is struggling with using a platform that the employer did not recognize was an issue. Training and help with the platform may need to be incorporated into the PIP. After implementing the PIP, it is important to timely follow up so that both the employer and employee are held accountable.

Assuming performance management fails to improve the employee’s performance, the process moves to termination. When terminating an employee, the employer should consider whether to offer a severance in exchange for a release. Whether to offer a severance is a business decision, but the decision contains legal elements. Severance packages are more likely offered if the employee is a litigation risk. To assess risk, the employer should consider protected categories such as the employee’s race, gender, age, sexual orientation, religion, disability status, or military status. Also consider whether the employee recently complained about being treated unfairly, complained about being harassed, announced a pregnancy, or was hurt in a work-related accident. Whether an employee falls within any of these categories is not dispositive. It is merely helpful in analyzing whether a severance should be offered in exchange for a release. Other factors that can impact the severance decision include the employer lacking documentation, or worse, having documentation that sings the employee’s praises with no reference to deficiencies.

When termination is inevitable, with or without a severance offer, it is important to consider the 5Ws:

Where: Set a meeting for a private location, preferably an office or conference room in a low-traffic area.

Who: We recommend that two people are present for the employee’s termination: the manager to whom the employee reports and an HR representative or another manager.

When: Once a decision is made to terminate someone, we recommend the termination take place as soon as possible. Of course, sometimes circumstances arise where there is a gap in time between the decision and termination. In those cases, the decision to terminate should be documented. The danger in allowing a break between the decision and the termination is that the employee could engage in some type of protected activity in that time period, such as requesting Family and Medical Leave Act leave, asking for a reasonable accommodation for a disability, or making a complaint of harassment. Documenting the decision will help establish a disconnect between the decision and the protected activity.

Why: Employees typically like to know the reason why they are being terminated, but the explanation does not need to include every detail. The employer should provide the general reason(s) with a few examples and note the examples are not comprehensive unless they are. Avoid a debate or discussion about the termination and tell the employee the decision has been made and is final.

What else: As awkward as it may be, do not apologize for the termination. Avoid words or explanations that the employee “wasn’t a good fit.” These words can be misconstrued easily and act as an employee’s “evidence” of illegal treatment.

Address the logistics. Remind the employee of ongoing confidentiality obligations or restrictive covenants. Provide details about a neutral reference, final paycheck and benefits. At the meeting, the employer should request all company property, keys, computers, etc. If the employee has the sole access to usernames or passwords (which we don’t recommend), request the information at the meeting. Further, the employee’s access to the employer’s systems and platforms should be terminated during the meeting.

Consider whether to allow the employee to gather his/her belongings on the day of the termination or schedule it for another time. In either situation, monitor the employee when he/she gathers personal belongings to ensure no company property is taken. Escorting the employee out of the building is also good protocol.

Be prepared for potentially violent or aggressive behavior. Consider whether to have security on site. If the employee becomes upset, angry or violent, do not engage and allow some time for composure. If the employee is rude or violent, demand that the employee leave, and if necessary, call security or police.

While addressing performance issues and terminating employees may seem burdensome, it is time well spent. An organization may turn the problem employee into its best performer. However, even when termination is the only solution, an employer protects itself by implementing good performance management and a thorough termination process.•

Candace A. Bankovich[email protected] — chairs Lewis Wagner’s labor and employment law practice group, and Celia M. Pauli[email protected] — is a member of the firm’s labor and employment practice group. Opinions expressed are those of the authors.

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