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When firing, choose words carefully, stick to performance

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in Employment Law,Firing,Human Resources,Leaders & Managers,Performance Reviews

Employees who have just lost their jobs usually leave their termination meetings in a foul mood. So, don’t give them any reason during that meeting to send them marching to a lawyer’s office. As you’ll see in the following case, one inflammatory phrase from a supervisor can spark a lawsuit.

Case in point: During his termination meeting, an employee repeatedly asked why he was being fired. Finally, the employee was told that it was due to his “criminal lifestyle.”

That phrase angered the employee, causing him to run out and sue for defamation.

The appeals court tossed out the lawsuit, saying that managers who are simply responding to “Why was I fired?” questioning shouldn’t be placed on the hook for defamatory claims. (Charles v. Florida Department of Children and Families)

While the employer in that case won on a legal technicality, it still had to spend big bucks defending the lawsuit in court. The manager could have prevented the lawsuit by simply answering the question with a less caustic, and more job-specific, answer, such as, “Your recent record of convictions gives us reason to doubt your trustworthiness, which is essential for your position.”

Advice: Briefly deliver the news by summarizing the well-documented, job-related reasons for the termination. That way, while the employee may not like it, he or she will have little to dispute. Allow the person to offer his or her side of the story, even with a little emotion, without interruption.

Also, avoid using harsh words during termination meetings that would only serve to inflame the issue. Stick to the facts; don’t make generalizing statements.

Legally smart terminations: 5 tips

1. Avoid surprises. When supervisors document poor performance and give regular feedback, firings shouldn’t take anyone by surprise. That will help prevent lawsuits, plus, if the organization ever suffers an employee lawsuit, that documentation can prove to a court that the firing was justified.

2. Keep your cool. Never holler “You’re fired!” or berate terminated employees. Remain calm. If employees ask for reasons, stick to concrete, documented productivity facts.

3. Don’t be too kind. If an employee’s work was substandard, say it. Don’t offer compliments to soften the blow. Doing so will only infuriate the employee because it will appear that the firing is without cause, which can spark a wrongful-termination lawsuit.

4. Play by the rules. Follow your organization’s established discipline policy, and don’t stray from your past practices. Courts will pick apart inconsistencies.

Employers have the right to divert from their discipline policies and fire employees immediately if those employees engage in serious misconduct. But before skipping progressive discipline, verify the facts.

It’s not enough to act on rumors of wrongdoing. Employers must conduct a thorough investigation and ask employees for their side of the story.

5. Keep it private and quiet. Discharge employees in closed-door meetings. It’s usually prudent to have someone besides the employee’s supervisor present.

Don’t discuss reasons for the termination with other employees. It’s enough to say, “Elaine will not be working with us anymore.” Some supervisors who have spoken too freely about the reasons for a firing have found themselves in court defending a “defamation of character” lawsuit.

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