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4 Difficult Firing Scenarios and How to Handle Them Fairly

Published on 12/18/2018 12:00:00 AM
4 Difficult Firing Scenarios and How to Handle Them Fairly

Firing employees is never an easy or comfortable undertaking for managers. It requires careful thought and actions to avoid complications and the risk of lawsuits. And as difficult as any firing can be, certain situations pose additional challenges.

Let’s consider four possible scenarios and how you can navigate them to stay within the limits of the law (while also minimizing discomfort for everyone involved):

Firing a family member
This scenario can be more emotionally charged because of the family dynamic, but the reality is this: Business is business. If the issue has been addressed — whether it’s a lack of skills, poor performance, a bad attitude or something else — and the individual hasn’t stepped up, the decision to fire is warranted.
Depending on the type of family bond, you can certainly come from a place of caring and concern, but still be clear that the working relationship is ending. In the future, if you continue to hire family members, strive to always separate business matters from family conversations and gatherings.
Firing a remote worker
The biggest issue here is how to handle the actual firing conversation, since the person isn’t onsite. If possible, arrange a video chat vs. delivering the news via phone or, worst, email. (Obviously, this will be less “suspicious” if you already interact with the worker through video calls). This way, the person can see your face and read your body language, which can go a long way toward conveying sensitivity.
Also, a best practice is to have someone else in the business (IT, for example) remove the worker’s login and company credentials during the firing conversation. This coordination ensures access to company networks and databases is shut off by the time the discussion is complete.
Firing a tenured employee
Parting ways with a long-time employee is another sensitive situation. From the perspective of the employee, they’ll most likely feel a sense of betrayal — that their years with the company could be so easily dismissed. But again, business is business — and if an employee, whether one year in or 10, isn’t working out, the decision to fire may be necessary.
As it is, the employee’s longevity with the company may cause them to resist change or overestimate their worth, all of which can contribute to a less-than-ideal working relationship. As with any firing scenario, approach the final conversation with respect and sensitivity. And if it’s warranted, stress the fact that you’ll be happy to give a good reference and support the employee in their job search.
Firing an employee about to retire
Ideally, a long-time employee will be a strong contributor up until retirement. But again, when performance is poor and the impact on the business is obvious, it’s within your rights to terminate, no matter how close to retirement they are.
You do need to be aware of two federal laws that could come into play in this scenario. The Age Discrimination in Employment Act (ADEA) prohibits you from terminating an employee based on age (protecting anyone age 40 or older). And the Employee Retirement Income Security Act (ERISA) bans you from discharging an employee simply to avoid paying retirement benefits. Be certain the reason for firing is legitimate and performance-based – and doesn’t trigger either of these laws. Then handle the conversation with the same tact as any other firing scenario.

Understand the Basics

Although you may encounter different scenarios such as these, it’s important to understand that specific disciplinary measures lay the groundwork for fair and legal firings. Progressive discipline puts the employee on notice of the severity of the problem, as well as the consequences for not correcting it. if the problem persists and terminating the employee becomes necessary, you’ll have proper documentation of the issue and the actions you took to address it.

The Progressive Discipline Smart App from HRdirect is a web-based tool to help you build a consistent documentation process. Also, for more information on how to handle the legalities and logistics of termination, check out the free e-guide, How to Fire an Employee Legally and Fairly.

Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
A record number of state and local employment laws were passed in 2018, and many more are pending. With each new law that passes, employers must struggle to understand and comply with ever-increasing obligations.