Tags: Human Resources

Terminating an employee is always messy. It can be made even worse when crucial mistakes are the reason for the termination and emotions may run high. What should employers do in these situations to protect themselves and their employees?

Employer termination checklists are fairly common. Most of these guides tell employers to take meticulous notes for every infraction, record every negative employee interaction, and to follow handbook steps to a “T.” Meticulous documentation is of course the best practice, and employers should always do their utmost to keep track of performance issues and communicate these issues to employees as often as possible.

But what to do outside of the perfect world? What should an employer do if there’s been some history of poor performance, including mistakes endangering others? In many fields, employers have the luxury of letting the employee have a transition period to potentially find new employment, but that is not always a risk employers in dangerous industries can take.

The best course of action at this point is to have a frank and honest conversation with the employee. There are few steps employers can follow to minimize the uncomfortable nature of the conversation:

  • Ask the employee to speak in a private setting to minimize the embarrassment to the employee.
  • Have your HR representative in attendance, or at least an employee who had a good relationship with the employee to be terminated. This person can act as a witness later if necessary.
  • Be very clear for the reasoning of the termination. Emphasize the action that put other employees at risk. If possible, cite to other similar issues the employee has had, even if you haven’t documented them.
  • Don’t editorialize about the employee’s mistakes. Often, employers can get into trouble with aged employees in these situations. Make it clear you are terminating them for their specific actions, not because “they just can’t keep up anymore” or other ambiguous reasons.
  • Consider having an attorney present for the termination. If the employee is especially likely to be problematic, consider having the attorney communicate the termination to the employee. This should help protect yourself if the employee decides to later sue.

A conversation in these situations could sound like this:

Employer: I have some bad news, John. We have decided to terminate your employment effective immediately. When you [cite specific mistake made], you put my employees in danger and that’s not something we can tolerate. Combined with [other dangerous mistakes made], we had no choice but to terminate your employment. You can grab any personal items you have and then you’ll have to leave the premises.

Whatever specific phrasing is used, it must emphasize the work performance specifically. If possible, recording the conversation may be helpful to combat a potential lawsuit as well.

Terminating an employee in these circumstances is likely going to be an ugly process—ugly, but necessary. Documentation beforehand is always the best way to protect yourself as an employer. However, when termination needs to happen quickly for safety’s sake, focusing on the specific work performance issues should help protect an employer from a later lawsuit.

Companies should work with their attorneys to ensure their termination practices are in compliance with current law. For any questions regarding these rules, contact our Sioux Falls, Sioux City, or Omaha office today!


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