Firing Etiquette

A senior HR professional asked when to have HR sit in on a termination.  As with many good questions, the answer is that “it depends on the facts.”  Here are a few initial observations before we get to the central question. . . .

1. A process should be in place so that HR is aware of the termination.

2. Processes should also be in place to ensure that  the supervisor’s boss or someone else in management has to approve a termination; even routine.  Even in  large companies, we learn of terminations carried out without oversight by frontline or site supervision.

3. Train “everyone who fires” to recognize that small percentage of potential “problem” discharges, and to contact HR.

4. Even better, build a culture where supervisors contact HR on a regular basis and not only when terminating an employee.

If the above steps are followed, hopefully HR or additional management is already involved in problem discharges.  I consider the following factors in whether it is wise to involve HR in the termination meeting.

1. How strong are the “people” and supervisory skills of the person handling the termination?  Lawsuits sometimes occur because of the way that a termination meeting is handled.  Even if the termination presents no meaningful legal risk, coworkers and potential hires will hear about shabby treatment meted out to an employee at termination.

2. Who will explain benefits, confidentiality and other “housekeeping” matters?

3. How high up is the employee and are there complex confidentiality, non-competition or customer issues?

4. Will the terminating supervisor keep adequate notes and complete forms?

5. What is the professional and “decent” way to handle the meeting?  Even when the soon-to-be ex employee (hopefully working for a competitor soon) is a truly sorry human being, nothing is gained by treating the person badly at discharge.

Notwithstanding these considerations, I prefer an additional person  to always sit in on a termination, and often that person is from HR.  Why?

1. To monitor personnel actions and to strive for consistent corporate behavior, or document when deviations are necessary.

2. Regardless of the routine nature of a termination, lawyers hate inheriting “he said – she said” situations.  I like a second witness to what the terminating manager testifies.

3. The HR professional may quite frankly be good at handling discharges, although I am not sure that they will revel in the role of everyone’s favorite executioner.

4. Employers seldom obtain much from exit interviews, or even persuade departing employees to complete an exit interview, which is a shame.  Employers often learn of theft, drug issues, discrimination and harassment occurring at the site when a teed off soon-to-be-former employee lets loose in the exit interview.  Remember the Memorex commercial where the sound is blowing the listener  back into his seat?  Of course, sadly, that analogy presupposes that you remember cassette tapes.  Maybe such information flows better with HR present, or with an additional manager present.

5. Sometimes an upper level manager or HR member is required to not –so-subtly send a message, positive or negative.

6. To handle the increasingly vital effort to protect data from walking out the door.

7. To better train supervisors who may seldom terminate an employee and probably have not received much training on how to do so.

8. Finally, if a termination is for rule breaking, attitude, or performance, is a termination ever truly “routine?”

What do you think?

As a parting recommendation, don’t terminate someone “virtually” as occurred in the outstanding movie, Up In the Air, even if you are as nice as Anna Kendrick (see clip).

One of these days, I am going to teach an MBA-level course using “Up In the Air” and “Office Space” as my source material!


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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