Terminating an employee is a fraught task, but the right preparation can preserve their dignity—while protecting your company.
One of the first employees Lisa Warech ever had to fire cried and begged for his job back after getting the bad news.
“He was devastated, just dumbfounded,” recalls Warech, the director of human resources for Cherry-Hill based Protocall Staffing Services. “He begged for another chance. It was the hardest termination I’ve ever done. I realize this is my job, but I felt like I was destroying somebody’s life. But I knew this is what I had to do for the company.”
Donald Trump may make it look easy. But employers throughout South Jersey find that firing a worker—even when absolutely necessary—is a task fraught with emotional and legal challenges. “You see tears,” says Warech. “It’s hard, but it does get easier, because you have to constantly say to yourself, ‘This is my job. This is what I have to do.’”
What can improve the situation—at least from the employer’s perspective—is preparing adequately for the encounter. And, as pessimistic as it may sound, that starts from the first day the employee starts on the job, according to employment attorney Louis Lessig. In his Westmont office at Brown and Connery, Lessig is used to fielding phone calls from clients who are either on the verge of sacking an employee and need advice—or who have already done the deed and have a lawsuit on their desk.
As a rule of thumb, Lessig says it's best to have an employee handbook that outlines the ‘do’s and ‘don’t’s in the workplace—something to use as a measuring stick. “Once you get past a couple of employees, it’s always better to have something in writing,” Lessig says. “The larger the organization, the more complex the handbook. A cookie-cutter handbook is not a good idea, because every organization is different.”
The handbook can establish rules like what time employees are due in and what happens if they’re late, how much sick or vacation time is given, and what the rules are regarding theft. “It’s really important to have those policies, because when someone’s not sure, it’s much easier to refer to it,” he says. “And make sure employees sign off that they got the handbook.”
Tracy Diamond, a lawyer for Hyland Levin in Marlton and the former human resources director for the Jewish Federation of Southern New Jersey, has first-hand experience delivering the bad news. “It’s never an easy decision to terminate somebody,” says Diamond.
Experience has taught her that it’s always best to establish clear expectations of the employee and give sufficient warning when those goals aren’t being met. When it comes to it, even let the worker know that they are at risk of termination—but give them a real chance to improve, with specific goals that they must meet. “When they don’t do the job, and they’re told they’re not doing it, when it gets to the point of having to fire them, no one is surprised that it happens,” Diamond says.
Doling out honest critiques is an important step, agrees Christine Bonavita, a Moorestown resident and labor lawyer. “I tell my clients communication is your best friend,” she says. “If you can communicate up front and you’re honest in your performance evaluations, you don’t have to settle for a mediocre employee.”
But whether the termination is a surprise or not, maintaining an employee’s dignity when breaking the news is important, Diamond adds: “I don’t want employees to be uncomfortable. If they’re in an open area, I try to time it so other employees are out to lunch, or at the end or beginning of the day. And I escort them to their desk to help them clean up.”
For legal reasons, it's always best to have another supervisor in the room, Diamond adds. “I want a person who can witness and document the conversations, so I have someone to back it up,” she says. “Plus, if an employee becomes violent I want to have help in the room.”
Even if there’s no violence, there’s always the fear that an employee might file a lawsuit for wrongful termination. Businesses in New Jersey must abide by laws against discrimination.
“You can’t be fired because of your race, gender, pregnancy or disability,” Bonavita says. Bonavita urges clients to forestall legal issues by tracking the employee’s performance history, attendance and background, as well as whether the worker was given opportunities to improve.
“You can’t avoid the risks, but you can take the time to identify the path of least risk,” she says. “When possible, offer severance in exchange for a release agreement. The person walks away and the employer gets the comfort of knowing they won’t be sued.”
Published (and copyrighted) in South Jersey Biz, Volume 1, Issue 6 (June, 2011).
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