Keep Your Story Straight by Paul Edwards

Keep Your Story Straight 

When it comes to employee termination, it’s important to control the narrative through clear communication and record keeping


by Paul Edwards


When it comes to employee separations, firings are, by far, the riskiest. As soon as an employee is fired, two distinct narratives emerge. There’s your story, in which an employee who had been given multiple warnings finally ran out of chances and was rightfully terminated, and then there’s the story narrated by the fired employee. You can bet that in this tale—which will be repeated tearfully to friends, family, bartenders and anyone else who will listen—your problem employee was instead an unfortunate victim.

Hopefully, the false narrative will stay within the social circle of the fired employee. All too often, though, the former employee sees a lawyer’s ad, and that bright lawyer catches the whiff of a small and underprepared practice and drafts a demand letter with no basis in reality.

In wrongful termination cases, the person who wins will most likely be the one who does the best job of controlling the termination narrative. Here’s how to control the narrative of each employee termination in a manner that protects your practice.

A pound of prevention

Day to day, there are a couple of things your office can do to help you control termination narratives should the need ever arise:

Keep all job descriptions updated and signed. The job description your employee signs should be well written and comprehensive. Terminations that are supported by statements about performance issues are best backed up by well-written job descriptions. Job descriptions can go a long way in helping you prove that a terminated employee understood what was expected but was unable or unwilling to perform one or more of the key duties of the position. The last thing a crafty attorney wants to see is a well-written job description that clearly supports the reason for the termination.

Download your free guide to terminations and separations

To download your free copy of CEDR Solutions’ “Here’s Your Exit: A Guide to Firing, Layoffs and Resignations” guidebook,
click here.

Give feedback often and document in real time. Management styles like CEDR Solutions’ Progressive Corrective Coaching can help you respond to problem behaviors immediately with the gravity each situation warrants while enabling you to compile rock-solid documentation should behavior not improve. [Editor’s note: To learn more about Progressive Corrective Coaching, see Paul Edwards’ article Overhauling the "Corrective Action Plan."]

Whatever management style you prefer, avoiding giving immediate feedback is a missed opportunity. Not only will the employee in question have no chance to improve their behavior, but you also miss the opportunity to build your case for termination through documented corrective action. A lack of communication gives your employees unspoken permission to continue problematic behavior, and failing to give regular and constructive feedback means that the termination may come as a surprise to them. No one should be surprised that there is a performance issue that warrants termination.

Perform a risk assessment


It’s important to be aware of potential legal risks that could derail a successful termination narrative. If your terminated employee is part of a protected group, the legal risks increase.

For example, it is illegal to fire employees because of their age, race, color, religion, national origin, citizenship status, sex, gender, gender identity, gender expression, sexual orientation, pregnancy, disability, uniformed service (current or prior), marital status or genetic information because these are considered protected groups in most locations. If your employee falls into any of these categories—and most will—the importance of good documentation surrounding the employee’s job performance increases quite a bit.


Keep Your Story Straight

Another risk to consider is proximity issues, when an adverse action against an employee happens in close proximity to participation in a protected activity. While proximity issues can encompass a wide array of activities, they generally fall into two categories: bringing workplace issues to the attention of the employer and requesting or using protected leave. So, if an employee just told you they think they’re being compensated incorrectly, and they’re fired the next day, that could certainly constitute a proximity issue. If an employee has just told you she’s pregnant and needs to request time off, it might not be the right moment to fire her over her recent poor job performance.

Remember, even if the employee in question is part of a protected class or participated in a protected activity, you are never “stuck with a bad employee.” It simply means that you will need to be mindful of the timing and your documentation efforts. It means you need to be certain that thorough documentation is in order, and it means that controlling the narrative becomes even more important.

Always be clear

Unfortunately, there are a handful of HR myths that just won’t die, and we here at CEDR find ourselves addressing them over and over. By far the biggest myth we encounter involves employers who’ve heard that it’s better not to give a reason when firing an employee. The myth goes something like: “If you give them a reason, then they can use it against you; by not giving them a reason, they have nothing to work with.” This is not true.

As you can imagine, by leaving a void and not giving a legal and supportable reason, you leave the floor open for them to create the reason for you in the form of a demand letter. There are a couple of additional persistent rumors that perpetuate this myth. One is that you can fire anyone for any reason in an at-will state, which is simply untrue. You cannot fire a person for an illegal or discriminatory reason, even in an at-will state.

Never attempt to soften the blow of termination by calling it a “layoff.” As you can see in the flow chart above, a layoff and a termination are very different. Use the words fired or terminated; never say, “We’re laying you off.” If you want to fire an employee for lawful reasons such as poor performance or attitude, but you tell them you’re laying them off because there’s a lack of work instead, you may lose your affirmative defense, which is simply they could not do the job and performed so poorly that they were fired. Remember that once you’ve received a demand letter, you can’t go back and list all the reasons they were a bad employee. In this case, the “layoff language” the employee heard can be used against you.

Another example of the difference between these classifications is that employees who are laid off can collect unemployment insurance, while terminated employees should not. Should you need help figuring out which classification applies to your particular employee, CEDR’s free separation guide “Here’s Your Exit: A Guide to Firing, Layoffs and Resignations” [see download instructions above] walks through each type of employee separation in great detail. When it comes to firings, always be clear that the employee is being terminated for a lawful reason.


Take purposeful steps

Many steps need to be taken in a successful firing; however, there are a couple that can help you control the termination narrative. For example, when it comes to the actual firing, always plan what you will say ahead of time. Clearly state the objective and job performance-related reasons an employee is being terminated. Keep in mind that terminations can be done with dignity, and giving the objective reasons need not be an indictment of your employee as a human being. Typically, lawful reasons are issues closely tied to work performance such as insubordination, attitude, low productivity, poor quality of work, poor attendance, harassment of other workers or customers and, in the worst instances, things like theft, discrimination, unlawful behavior, physical violence or threats against other employees.

When discussing the termination with the employee, do not argue or backpedal. Any arguments you make in the heat of the moment are likely to work in the employee’s favor later. State that your decision is final and move the conversation toward closure. As soon as the employee leaves, document the exchange. Make note of any accusations made, especially threats. This will prevent the employee from including undiscussed issues that change the narrative later.

You might be tempted to skip including the exit interview form with any employee who leaves on bad terms. After all, what can an underperforming employee tell you about your practice?

Here are two reasons why you shouldn’t skip the exit interview form:
  • A former employee, fired or not, is likely to be very candid about what’s not working at your practice, which could be valuable information for you.
  • More importantly, though, it is in your best interest to get the employee’s account of their firing before they have a chance to craft a counter-narrative with a lawyer. The exit interview form can lock in the employee’s story and work against any narrative that may be created about wrongful termination or discrimination when the firing occurred.
Conclusion

All too often, employees gather their belongings, leave the office and then, after being given a chance to stew about it, decide to consult with someone to see if they were wrongfully terminated. While it may be tempting to skip preventive measures, being vague about why your employee was fired or skipping steps in the termination process that seem difficult may allow your ex-employee to tell whatever story they want.

Author Bio
Paul Edwards Paul Edwards is the CEO and co-founder of CEDR HR Solutions, which advises and provides services to dental practices on office compliance, employee handbooks, and HR education and support. The company also offers a complete HR software suite for dental professionals.

 

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