When It’s Time to Say ”YOU’RE FIRED”

If you ask business owners to make a list of things they dread, having to fire an employee probably ranks right up there with an IRS audit. Both can keep you up at night and make you wish you didn’t own the place.

But as much as they might dread it, eventually, most business owners are faced with having to terminate an employee. This article is intended to help when you are faced with that decision.

First, I believe that no employee should be fired by sur­prise. They may be shocked when you actually do it, but they should already know that their performance (or lack thereof) has not been acceptable and that their job was at risk before they are terminated.

I recommend that you conduct periodic job reviews and/ or have a progressive discipline policy. By reviewing performance and issuing warnings for substandard performance, you have an opportunity to steer an employee in the right di­rection and give them every chance to modify their behavior, attitude, or work ethic. If they don’t, they have set themselves up for termination.

Of course, some behaviors are so egregious, they warrant immediate termination. Your employee handbook should clearly state the “at-will” nature of their employment and that you have the right to by-pass part or all of the disciplinary process and fire someone at any time for any legal reason. (Note: This article assumes your firm is located in an “at­will” state and that contractual or other legal limitations have not modified the at-will employment relationship.)

HOW TO DECIDE IT’S TIME FOR SOMEONE TO GO.

The only reason you might read this section, is to confirm what you already know. You and your firm will be better off without this person. But here goes anyway. When you think of the employee in question:

• The list of good is shorter than the list of bad.
• They create more problems than they solve.
• They bring a toxic negative attitude, drama, and discord into the workplace.
• They create happiness when they leave the room, not when they enter it.
• Someone else (or maybe you) is constantly cleaning up the messes they make, finishing the projects they don’t complete, or fixing the ones they do.
• They can’t seem to get themselves to work on time, as if they are entitled to their own special schedule.
• You know they complain to others about their job or about you personally.
• You find yourself doing things just to make them happy- sometimes making you feel like you work for them rather than the other way around.
• You can’t count on them to “go the extra mile” when necessary, because they can’t be trusted to complete the mile they are on.
• You rarely rate anything they do as “excellent.”
• You seem to spend more time dealing with their issues than all other employees combined.
• Their attitude, laziness, or sloppiness creates resent­ment among the staff, and that resentment might also focus on you for not doing something about it.

And yet still you hesitate. Yes, we can acknowledge that some dismissals are made harder when the employee is a likable person who is just not suited for their position, when the employee is also a personal friend, or maybe worse yet, they are a family member.

It’s also hard when you know their family situation. They may be the primary breadwinner, or they may be a caregiver for a sick or elderly family member, or they may be a single parent.

You find yourself more concerned about their job than they are. But if the job is that important to them, they should have taken better care of it. That is their responsibility, not yours.

I had one business owner tell me he wanted to fire a 12-year staff member who was doing little more than taking up space, but that it was hard because he was a long-term employee. I had to tell the owner that this wouldn’t have been a problem if he would have fired the guy when he should have-eleven and a half years ago.

I don’t think I have ever met an employer who says they fired someone too soon, but I have a long list of those who would say they didn’t do it soon enough.

Many years ago, NFDA had a speaker at the convention who was the CEO of a large manufacturing business. I don’t remember his name or anything else he said, but I do remem­ber the air leaving the room when the thousands of attendees heard him say this about firing problem employees, “It’s not the ones you fire that make your life miserable, it’s the ones you don’t.”

So, you have finally decided it’s time to let them go, but just don’t know how to go about it? We are going to take care of that part right now.

BEFORE THE MEETING

There are several things that need to be done before you meet with the employee. And yes, you do have to meet with them. Unless they are a remote worker, rare in funeral service, don’t even think about doing it via telephone, email, or text.

• Confirm with your payroll company or attorney the state law regarding final pay. Some states allow you to make their final pay at the next scheduled payroll date. Other states require immediate pay at termination. Regardless, I recommend you draft a final paycheck and physically give it to the employee when you meet with them. This should include any final commissions for preneed or monument sales as well as pay for unused PTO (if that is the law where you are or is part of your PTO policy.) Confirm the termination date with your payroll company and that you will be issuing their final paycheck.
• You may want to talk to your attorney on any number of questions you may have including a Release of Claims. You would generally not offer severance pay to an employee you are firing, but you might do so in exchange for them signing a Release of Claims. That would prohibit them from filing any type of claim or lawsuit against you for things such as alleged discrimination in promotion, pay, or unlawful dismissal; work related illness or injury; sexual harassment; or other possible claims. While this may not be applicable in most terminations, and the employee may still choose not to sign it, in certain circum­stances it may be worth talking to your lawyer about.
• Contact your health insurance provider and retirement plan administrator so that you understand the basics of continuation of their health plan or their options for rollover or distribution of their retirement plan.
• Contact your IT provider and other vendors as applicable, so that they are prepared to disable the employee’s email, forward email to another designated mailbox, block computer access from their phone or laptop, remove their phone extension, transfer their calls and voicemails to another extension, remove their photo and bio from your website, turn off access to their company provided cell phone, de-activate their company credit card, remove them as check signers, and change the building security system entry code, You may want to arrange for a locksmith to rekey entry door locks as soon as possible after the dis­missal, especially if their key is not immediately returned.
• Create a termination letter. The termination letter should contain the following key points:
  • Termination is immediate and effective today. (the day you meet with the employee), Use clear language that this action is non-reversible.
  • State that this is an at-will termination., It is best to not list specific reasons for their termination. They should already know, right?
  • Information on the final pay they will be receiving including any commissions due, PTO time, etc. or that their final paycheck is enclosed.
  • Information on other benefits including continuation of health coverage, distribution or rollover of retirement plan, and who to contact for assistance in these areas.
  • Return of company property including keys, employee handbook, company cell phone, credit card, name badges, business cards, uniforms, etc. Make a list of what you know they have. If some of these items are at the employee’s residence, you can give them so many days to have them returned. Generally, you are not allowed to withhold pay for any reason including return of company property. If you anticipate difficulty in having these items returned, you can inform the employee that if they are not returned within a reasonable timeframe, they will be reported as stolen to local law enforcement. You can also file suit for their return as well.
  • Reminder of their obligation under your confidentiality policy and/or non-compete agreement.
  • Request that they keep you informed of any change in their mailing address. (You still have to mail them a W-2 at the end of the year.)
  • List items of company property that must be returned. Leave space for initialed receipt of company property you are accepting at time of dismissal.
• Give some thought to what happens the day after the dismissal. Will schedules need to be changed? Do you know about any projects this person is working on that you will need to reassign or complete after they are gone (monument orders, pending preneed contracts, etc.)?
• If the person is to be replaced, you might talk to a recruit­er or make some discrete inquiries to get a head start on finding a replacement.

THE BIG DAY

The day of the meeting may dawn bright and clear, but you will naturally be anxious. Planning the meeting will make it less difficult.

The goal will be to dismiss this person with grace, calm, compassion, and professionalism. Even if you dislike this person, you want them to leave with their dignity intact as much as possible.

To this end, the day chosen for the meeting is important. It should not be on Friday or before a holiday. The former em­ployee will have less access to resources such as resume help, recruiting companies, job search companies, or possibly even their counsellor or therapist. Try to pick a day with as light a workload as possible. Pick a day when you have no evening commitments. You are going to want to unwind afterwards, I assure you.

The meeting should be held at a time when as few employ­ees as possible are around or can tell what is going on. The end of the day is often the best option. It is least disruptive to that day’s work. If other employees see them leave, it won’t look quite so unusual. Finally, if they are in a carpool or are driven to work by a spouse or friend, any other time means they have no way to get home.

Just before the meeting begins or as it begins, instruct your IT person and other vendors to disable computer pass­words, voicemail, and change the building access code now.

Choose a private place. If not your office, another room that provides privacy where you won’t be disturbed.

THE MEETING

Never conduct this meeting alone. You might be joined by an HR person if you have one; a manager or senior employee, or even your attorney. And in that rare case, if you sense the need, you might hire, as discreetly as possible, plain clothes private security to accompany you or be on the premises.

With all due respect to Mr. Trump, sitting across the table, pointing your finger at the employee and saying “You’re fired” is good television, but it is in poor taste in real life.

Stay calm, do not show anger or resentment, breathe slow­ly, and intentionally lower the volume of your voice (volume and tone generally go up when you are nervous). Remain poised and confident. Be in charge. Follow the termination letter as a basic outline.

• In simple terms inform them that they are being termi­nated today. Don’t be wishy-washy. Use clear language to state that this decision is final and irreversible. Give no hope or indication that they can change your mind, be given another chance, or be reinstated.
• Explain that this is an at-will termination. Avoid giving reasons or any discussion of the reasons. If you used a progressive discipline policy or at least had discussions with them in the past about their job performance, this doesn’t need to be rehashed. This would only give the opportunity for arguing and anger. They are still likely to ask why, but all you need to say is something like, “Since the time of your last warning about (the situation) or (your performance), things have not improved and I have decided to terminate your employment.”
• Present them with a copy of the termination letter and have them sign a second copy for you as receipt of the letter, not that they necessarily agree with it.
• Explain to them the final pay process or give them their final check to accompany the letter.
• Explain what will happen to their health care and retirement plan, their options, and who to contact for assistance.
• Ask for their building key, company credit card, and com­pany cell phone. Note on both copies of the termination letter what items are returned. Sign or initial it. List and discuss the return of any other company property they may not have with them.
• Remind them of their obligations under your confidentiali­ty policy and if applicable, their non-compete agreement.

It is difficult to predict how someone will respond to being fired. Shock? Anger? Defensiveness? They might cry, they might argue, they might lash out at you personally. While you have little control over their response, you have full control over yours. Remain calm and professional. Don’t argue, be­cause there is nothing to argue about.

Keep the meeting short. There is really nothing else to talk about that will not lead to more hurt feelings, anger, or un­necessary drama. End the meeting with finality and positiv­ity if possible. Wish them the best or tell them you hope they find a position they are well suited for. Standing up signals that the meeting is over.

On television and in the movies, the fired employee is next seen walking out with a cardboard box filled with their personal items. Discard that image. Its degrading, insulting, and not very wise. They don’t need to be embarrassed and you don’t need to provide one more opportunity for them to say something bad about you to other employees or get in one final bit of sabotage.

You do not want to give them a reason to return to your building. Depending on circumstances, you may want to clearly tell them that. Escort them as they collect their car keys, purse, or personal cell phone and then escort them from the building. Tell them that any other personal items will be delivered to them by courier tomorrow. You will in­ventory what you collect and have them sign a receipt for it when delivered. Ask them to have company property ready to give it to the courier. The courier will give them a receipt for that property as well.

AFTERWARDS

You will want to talk to your staff. They may already know or suspect something is going on. They should only be told that the person has been dismissed, that for legal reasons you cannot discuss details, and that the person is not allowed to reenter the building. Make sure they have the new building access code.

Assuming it to be true, you can assure them that all is well with their jobs. This was not done as a result of a business downturn and that no other employee changes are anticipated.

Address any schedule changes or overtime that might result. Outline any plan you have to minimize the impact on their lives. If you are looking to replace the person dismissed, tell them that so they know that any extra work filling in the gap is only tempo­rary. Thank them for their loyalty and hard work.

You may well detect relief among the staff. They may be as tired of the behavior of the now former employee as you. They probably had to cover for them or put in extra work because of them and they are glad you finally acted.

If this dismissal happens to be close to the time for sched­uled pay raises or payment of a bonus, you might want to move those dates up.

Finally, if you were threatened by the employee or feel any sense of unease, do not take chances. Make sure the building and your home are secured at night. Security cameras may already be a normal part of your business. Just be sure they are operational. In extreme cases, you may want to notify local law enforcement and ask for additional patrol of your properties or hire private security for a time.

There is no pleasant way to fire someone, but there cer­tainly are steps you can take to lessen the impact on yourself, the employee, and the rest of your staff.

This article is meant to be a general discussion on the topic presented. It is not meant to be legal advice. Human re­source issues are especially subject to changes in the law on a federal, state, and local level. Consult an HR professional or your attorney before implementing any personnel poli­cies in your firm.