When terminating someone, it's critical to choose your words very cautiously. Briefly summarize your reasons for the firing, and allow the person to offer his or her side of the story, even to vent a little emotion, without interruption.
But avoid harsh words that only serve to inflame the situation. Instead, deliver the news by linking the firing to clearly defined, job-focused reasons. People may not like it, but as long as you can cite well-documented, job-based reasons, they'll have little to dispute. (This provides even more reason to document employees' work.)
In the following case, an employer told an employee that the firm was firing him due to his "criminal lifestyle." The employer won a subsequent defamation lawsuit but could have avoided the suit altogether by simply saying, "Your recent record of convictions gives us reason to doubt your trustworthiness, which is essential for your position."
Recent case: Following policy, both a supervisor and an HR rep were present to inform Garvey Charles that the firm was firing him. During the meeting, Charles repeatedly asked why he was being fired. The HR rep told him it was because of his "criminal lifestyle."
Charles sued for defamation, but a state appeals court tossed out the case. Reason: Statements made by employers who respond to employees' "Why was I fired?" questioning shouldn't put them on the hook for possible defamatory claims, the court said. (Charles v. State of Florida Department of Children and Families, et. al., 4D04-1110, Fla. 4, 2005)
The lesson: If an employee is aware of what his bosses might say about him, and then he invites you to say it, he likely won't win a defamation lawsuit, regardless of the comments. This is called the "invited defamation" defense, and the court in this case said applying it in a situation like this "encourages employers to be forthright in stating their reasons for a negative employment decision."
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Congress gives employees new whistles to blow
- New Supreme Court ruling expands your potential FLSA liability
- Don't ask for unlimited medical exam consent
- Discipline 'protected' employee—but document why you treated similar offenses differently