Library Worklife

Volume 3, No. 8 • August 2006

HR Law & Regulation

It’s So Hard to Say Goodbye

What Employers and Employees Should Know about Terminations

By George K. Pitchford Esq.

Few things bother both employees and employers as much as involuntarily terminating the employment relationship. Of course, no employee likes to get fired, and, surprisingly, terminating the employment relationship is no picnic for employers either. I have personally worked with some of the largest employers in the State of Michigan and can tell you that management often agonizes over the decision to terminate employees, even in extreme performance and disciplinary cases. These discomforts notwithstanding, in this day and age where downsizing is a way of life, both employers and employees should be aware of some of the issues surrounding the termination of the employment relationship, and how to handle it properly while minimizing potential liability.

Advice for Employees

Although management may struggle with terminating employees, in my experience, termination is always harder on the employees. Not only may it represent a huge financial burden, but many employees also take it as a form of rejection, and a judgment of their personal worth. One of the first steps an employee facing termination should do is resist these feelings. If given an opportunity, request an interview with the decision maker of the organization as soon as possible. This is usually the last person an employee who was just terminated wants to talk to; however, an employee should try to assess whether the termination is because of performance or an economic decision. Although economic decisions are rarely reversed, employers will often reconsider a termination based on performance if an employee has an explanation or shows real commitment to improvement.

Once it is determined that the decision to terminate will not be reversed, an employee should immediately plan an exit from the current position and, more importantly, an entrance into a new position. When facing termination, most employees fail to realize that they will probably soon be seeking a job in the same industry and usually in the same general geographic region. It is therefore paramount that they exit with dignity and decorum, mindful of the necessity of protecting their professional reputation. I recommend that employees draft a report that details their current duties, and any open projects and forward it to their employer. This will not only demonstrate professionalism, but it can also be a starting point for updating a resume, cover letters, portfolios and other important employment tools.¹

Avoid revenge. Whatever momentary satisfaction may be derived from reformatting a hard drive, destroying the filing system or verbally/physically assaulting a manager, will be far outweighed by the damage that will occur to an employee’s reputation. These acts rarely do any real damage to an organization, but they reflect badly on the employee and, more often than not, create more work for former colleagues, who may be a great resource in the upcoming job search. When the final day comes, don’t just leave the building, leave everything behind. Unexpectedly entering the job market is daunting, but employees will have a very hard time moving forward if they are constantly looking back. Employees should have faith in themselves, and do what is necessary to secure a new position.

Advice for Employers

Employers considering terminating an employee also have a myriad of considerations.

One of the initial issues that must be addressed in any prospective termination should be whether there is cause. Not only will the incumbent be adversely affected, but there are also economic factors to consider such as re-training a new worker and/or losing the employee's skill set. Accordingly, every employer should establish a core set of standards, usually at minimum documented in an Employee Handbook, that the employee must have failed to comply with to have sufficient cause for the termination.² This employer protection can be enhanced if an employer conducts periodic performance evaluations to ensure that the employee is fully informed of any unsatisfactory performance, misconduct or attendance issues that should be addressed regularly throughout the employment relationship. Before terminating an employee for performance and disciplinary issues, I often recommend that employers consider using a Last Chance Agreement. This is an informal written agreement between the employer and employee that clearly sets forth the employer’s expectations, a timeline for the employee to comply and the consequences if the employee fails to meet the expectations of the employer. This is an excellent tool that lets both parties know exactly where they stand.

Once the decision to terminate has been made, the employers’ next step is to consistently follow a method of work rules or standards that have been adopted by the organization to reduce the possibility of litigation in the future. These standards must be applied consistently for each employee and notice of any changes must be immediately communicated to each employee being affected by the modifications. This helps reduce any possible legal claims by an employee for unfair treatment or other related discriminatory practices.

All of the above notwithstanding, employers should be sensitive to possible employee reactions. Be prepared to address the range of reactions, from emotional to violent. If you have any reason to believe that an employee may become violent, do not hesitate involve security or law enforcement to protect yourself or your colleagues.

The topic of terminating the employment relationship is unpleasant and uncomfortable to most people. In spite of this employers and employees must be prepared for this unfortunate event. Employees should always have an updated resume ready, and make networking within their industry a constant practice. Employers must have clear policies that are applied in a fair and non-discriminatory manner. Most importantly, both employees and employers must focus on their futures.

References

See Schacher, Casey. "Online Portfolios: Career Portfolios: The Next Standard in Career Development." Library Worklife 2, no. 12 (December 2005). www.ala-apa.org/newsletter/2n12.html#career.
See Singer, Paula and Laura Francisco. "Revising an Employee Handbook." Library Worklife , 2, no. 11 (November 2005). www.ala-apa.org/newsletter/2n11.html#hrpractice.

Mr. Pitchford is an attorney at Floyd Allen & Associates, a labor and employment law firm in Detroit, Michigan. He would like to give special thanks to contributing author Nichole Hunter, J.D., and her research assistant James Ulmer.

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