By Jonathan Driggs, Attorney at Law

“It’s just not working out,” she told him, careful to avoid his gaze.  His voice trembled, reflecting the deep hurt he was feeling, “Mary, was it something I said?”  She sighed deeply, “no, not at all… it’s… it’s just not working out like it should, Fred.”  “Look,” he said, “I will do anything… just tell me what you want me to do!”  “It’s too late,” came her whispered reply, “it’s just too late.”

No, I didn’t pull that paragraph from the cheap romance novel I’m writing.  Let me put it in context: Mary fired her employee in the very next sentence (and no, they didn’t have anything other than a professional relationship going on!)  Terminations and drama—they go together like cheap flowers and waxy chocolates.  The termination process can be complex and difficult, from both emotional and legal perspectives (and yes, we often make it even more complex and difficult than it needs to be).  Here are some brief thoughts about trying to minimize the drama when it comes to terminations (FYI, I am assuming “at-will” employment relationships for this discussion): 

1.  There’s usually no easy way to just slip them out the door quietly.  There was a great Far Side cartoon years ago about a couple who “feigned death” in order to get another couple that had over-stayed their welcome to finally leave their house.  Oh, if it were only that easy!  I know of employers who rather than confront the poorly performing employee, have cut the employee’s work hours drastically hoping that he or she will just wander off to another job (“oh! Do you still work here? I forgot!”).  Such tactics (often passive aggressive in nature) usually only serve to confuse and anger the employee, leading to problems becoming worse.

2.  At-will employment is never a reason to let someone go.  At-will employment preserves the flexibility of the parties, but should never be used as a reason to let someone go.  Employers should always have legitimate, business-related reasons for terminating an employee that are appropriately documented.  And the vast majority of the time, such reasons shouldn’t be secret from the employee!  Employees who are left in the dark about why there are terminated are more likely to file claims in order to discover the reasons (I know this because I have had many employees tell me so over the years).  Paradox 101: sometimes avoiding conflict leads to the conflict becoming worse.

3.  Use an appropriate standard when making termination decisions.  I find that most “for cause” terminations can be processed and evaluated through the following paradigm:

 1) Recently discovered facts create an intolerable situation justifying immediate termination (e.g., you caught an employee stealing from you—most usually feel the need to immediately fire the thief, not issue a warning), or

2) You’ve taken reasonable steps (e.g., issuing a written warning) and allowed for a reasonable amount of time for improvements to be made, and the hoped for improvements are not materializing. 

Regarding #2 (which covers the majority of “cause” terminations in my experience), issuing a written warning prior to termination should be the usual practice—this is the best thing to do from an ethical perspective as well as from a legal risk management perspective.  The amount of time you give an employee to get his or her act together will vary widely depending upon the type of job, the length of employment, etc.

4.  Dealing with the long term employee whose performance has declined.  Ending relationships with long-term employees can often be difficult emotionally and otherwise.  It gets even more complicated when job performance hovers around “barely satisfactory” rather than “horrible”—you almost wish they would just do something really bad so you could fire them over it!  All the while “opportunity costs” are mounting—someone fresh to the job would probably work wonders. 

What do you do?  First and foremost, start talking to the employee—and in a respectful manner be upfront about your concerns.  Describe as objectively as possible what the employee is doing or not doing that is causing your dissatisfaction.  Interesting things start to happen when we begin to dialogue in a respectful manner.  Sometimes the employee improves.  Sometimes the employee takes it as a wakeup call and finds another job.  And sometimes it opens the door to respectfully exiting the employee out of the workplace. 

One option to consider using with long term employees (especially those who have made a meaningful contribution over the years but are no longer performing well), is the “performance improvement plan or severance” option.  Here’s a sample dialogue (abbreviated of course):

“We’ve been concerned about your performance for some time now [explain concerns].  We’d like to present you with two options: 1) you will be placed on a performance improvement plan and be required to bring up your performance to acceptable standards, or 2) in light of the length of your employment with the company—and in recognition of the meaningful contribution you have at times made—we would offer you the following severance package in exchange for your resignation [explain severance package].  Regardless, we will not allow the status quo to continue.”* 

Clearly, this option isn’t desirable in many situations, but used at the right time with the right person, it can be helpful.  It gives the employee two reasonable options to choose from—including allowing a long term employee to make a graceful exit and move on.  Some employers may balk at paying a severance—which I completely understand.  But I also find that some don’t balk as much as they should at continuing to pay the salary of a long term employee who is performing poorly.

Obviously, termination decisions are serious business and you should check with the legal counsel of your choice to work through the specifics before taking any actions.  But in the end, if you’re willing to communicate you’ll minimize the drama for everyone involved.

Oh, and keep an eye out for my romance novel, it’s gonna be great!

*As a matter of standard operating procedure, the severance package should be conditioned upon the employee signing a release of claims agreement.  Another approach is to present option #1 and only discuss option #2 if the employee does not respond well to the performance improvement plan option.


This article should not be construed as legal advice.  Copyright ©2012 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.


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