Making the decision to terminate the employee relationship is a complex decision that requires thought and planning. There are many things an employer can do to help minimize potential liability resulting from termination decisions. Key suggestions include, but are not limited to, the following: 

• At-Will Language: Include at-will language in the company’s employment applications, offer letters, employee handbook, arbitration agreement, etc. At-will provisions must be clear, conspicuous and consistent across all of the company’s written or oral employment policies and practices. 

• Train Supervisors, Managers and Interviewers: Employees should never be told (in writing or orally): 
  • They will only be discharged for “cause,” “good cause,” or “just cause.” 
  • They will only be terminated “if they are not doing a good job.” 
  • They will continue to have a job “as long as they do a good job,” or “will always have a position with the company.” 

Make sure that these individuals understand that what they say can bind the company. Typical at-will policy language always includes a provision clarifying only the highest authority (president or manager) can make any changes in the at-will relationship. 

• Personnel Policies and Procedures: Typically found in the employee handbook, but can also be found in company announcements, memoranda, or other documents. To avoid inadvertently turning a company policy/procedure into a contract, there should be sufficient flexibility such that the employer is not contractually bound to act in a certain manner. This is especially true when it comes to discipline and discharge policies. These types of policies should be broadly worded (e.g., “an employee may be subject to discipline, including termination;” “the following list of offenses is for ’illustrative’ purposes only”) avoiding words such as, “will,” “must,” and “shall.” 

• Performance Reviews: Performance appraisals can be a powerful tool for the employer in its effort to maximize the work performance of its employees. However, if they are not done consistently and accurately, they can do more harm than good. Always provide a section for the employee’s comments and signature. Remind employees reluctant to sign a less than stellar performance review that their signature acknowledges receipt of the review and not an agreement with its content or conclusions.   

Making the decision to terminate an employee requires careful analysis and planning. However, the way in which an employee is notified of their termination is equally important.   It is rare for an employee to admit that they may have made a poor decision in accepting the job or that their performance has declined. Therefore, even if employees have an inkling that their job may be in jeopardy, they are usually caught off guard when they receive notice of their termination. It is crucial to handle the termination process with sensitivity and professionalism to minimize the impact on the employee and the rest of the team. When preparing to notify an employee of a termination decision, consider the following: 

• Setting. For employees who regularly report to a worksite, meet with the employee in a private room away from co-workers. Schedule the meeting at a time that will allow the employee to leave the workplace with as little embarrassment as possible. For remote employees, consider scheduling a virtual meeting rather than requiring the employee to drive to the office only to be terminated. A termination meeting should always be attended by two company representatives (e.g., the immediate supervisor (if appropriate) and/or human resources and/or another personnel representative). 
• Timing. Until relatively recently, HR professionals thought it was better to conduct terminations on a Friday. Now, it is generally considered better to schedule employee termination meetings during the middle of the week rather than on a Friday for a few reasons:  

1. Avoiding weekend worry: Terminating an employee on a Friday can leave them feeling anxious and stressed over the weekend. This can lead to negative feelings and actions, such as spreading negativity about the company or seeking legal counsel. 
2. Easier to handle logistics: If an employee is terminated on a Friday, it can be difficult to handle logistics such as payroll, benefits, and collecting company property. These tasks are often easier to handle during the regular workweek when necessary parties are available to assist with the process. 
3. Giving time for follow-up: Termination meetings can be emotional and stressful for both the employer and the employee. Scheduling the meeting mid-week allows for follow-up meetings and discussions to occur before the weekend, which can help alleviate some of the stress and provide a clear path forward for both parties. 

• State Reasons/Answer Questions. At all times the employer should treat the employee respectfully and preserve the employee’s dignity. State the reasons(s) for the discharge. This may be a single incident, a combination of infractions, or poor performance. The reason(s) for the termination should be well documented, prior to the termination meeting, if possible. Keep in mind that the employer cannot later give reasons for the discharge that are inconsistent with what was told to the employee at this meeting. 

Be honest with the employee and stick to the facts. Avoid vague, ambiguous opinions such as “you just don’t fit in” or excessive detail. Give the employee the opportunity to comment and ask questions. Do not argue with the employee. The employee may need to vent their anger or frustration. To some degree this may lessen the angry feelings when the employee leaves. Be compassionate, but firm about your decision. Be prepared to answer questions about resignation or lay off in lieu of termination. 

Remind the employee of any internal procedures for review of the decision, if available. If the Company wants to offer the employee additional pay or some other remuneration and/or benefits in exchange for a Settlement Agreement and Release of All Claims, a copy should be given to the employee at this time. Finally, handle the employee’s exit after the meeting with courtesy and sensitivity. Although there may be times when a security officer should be present, this is not always necessary. 

Overall, thoughtful planning of terminations can help ensure a smoother and more productive process for all involved and mitigate potential liability.