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Protect yourself legally and physically when you fire a staffer

Besides being unpleasant, firing a staffer is dangerous.

There are two concerns, says employment law attorney Denise I. Murphy of Rubin and Rudman in Boston.

Of first importance is the physical safety of the manager and everybody else in the office.

Of second importance is legal safety. The manager has to minimize the risk of a claim of wrongful termination, discrimination, or wage and hour violation. “There’s no need to buy a lawsuit,” Murphy says.

You’re fired; we’re sued

The first concern is how to set up the you’re-fired meeting, and there the concerns are invasion of privacy and protection of the office’s computer information, she says.

To stand in the middle of the office and scream, “You’re fired!” is the same as talking about a personnel matter in public. It’s a privacy invasion. It discloses personnel record information, and most states do not allow that without written authorization.

The same can even hold true for saying within earshot of other staff, “Some to my office at 5:00 p.m.” That’s a clear signal that things are going south, Murphy says, “and now everybody knows it.”

The best way to commence the firing meeting is to call the staffer on the phone and say, “I’m in Room A. Can you come in here?”

That’s safe all around.

Because the call is private, the office has legal protection.

And because the meeting is immediate, there’s no time for the staffer to copy or damage any data, particularly the patient information.

For additional technology safety, before making the call, bar the individual’s access to the computer, Murphy says. Then, after the firing, tell the staffer that if there is personal information on the system, the office will send it later.

The setting and the seating

For the meeting itself, the most serious concern is physical safety.

Hearing “you’re fired” is deeply disturbing to anybody, and employees respond in all sorts of ways. “Some cry, some yell, some get angry, and some don’t react at all,” Murphy explains.

Thus, the best setting for the meeting is a neutral one such as a conference room – with another person there as a witness, or what Murphy calls “an added measure of protection,” should the staffer become violent.

Also important is the seating arrangement. Seat the fired staffer farthest away from the door. The manager and witness should then sit closest to the door so they can get to it first if violence erupts.

Be honest about the reason

As for the conversation, be professional and truthful. Lay out the real reason for the firing.

Don’t take the easy way out by saying something like, “Business is slow and we just don’t need you anymore.” If the staffer is in a protected class and if it’s obvious business hasn’t slowed down, in walks a claim of discrimination.

Suppose the reason for the firing is unacceptable grooming. It’s not necessary to be as brutally frank as, “You’re a slob.” But don’t skirt the truth either.

Tell the staffer, “As you know, we talked on (dates) when you came in inappropriately dressed, and I explained what appearance is required in the office. You have failed to meet that requirement, and we need to let you go, effective immediately.”

Answer whatever reasonable questions the staffer asks, “but don’t get into excessive detail,” Murphy says. For example, if the response is, “I didn’t realize that you really meant it,” point out what was said earlier and stop there.

Keep the meeting short and say as little as possible. It’s also a good idea to write down what was said and what happened at the meeting. But be aware, Murphy points out, “that the notes are discoverable.”

A paycheck with no promises

Two legal points at this time: give the final paycheck at the meeting and don’t promise unemployment compensation.

As to the paycheck, Murphy says, except for on-the-spot firings, most states require that the employer “provide it on the day of termination.”

The check also has to cover everything the employee is entitled to, and usually earned vacation pay is considered wages and therefore has to be included. To do otherwise is to violate wage and hour requirements, and if that happens, the office can be liable for damages and attorney’s fees and even face criminal charges.

As to unemployment compensation, never say the employee can collect it.

Many managers do that, again to soften the blow. But whether an employee is eligible for it is not the employer’s decision but something the state determines.

If the manager promises it and it turns out the staffer isn’t eligible, it looks like the office lied. “And people who have been lied to are people who sue,” Murphy says. And even if the claim is defensible, she notes, “the office still has to spend a lot of money defending itself.”

The safest approach is to send the staffer a letter confirming the discussion and outlining what may be available, for example, “Because of the circumstances we discussed, you are terminated effective immediately. We have provided you with the final paycheck and we will send you information about COBRA and unemployment compensation (and whatever else the office offers).”

That doesn’t say the staffer is eligible for any of those benefits. It just says, “Here’s how to find out if you are.”

Don’t get too compassionate

Also important is to recognize the devastating effects a firing can have on an employee and show compassion, Murphy says.

Just don’t show too much of it.

Many managers turn to platitudes such as, “We have enjoyed having you here” or, “We value what you have done for us.”

Neither of those statements is true or the firing wouldn’t be taking place, and the staffer’s thinking is going to be, “If they liked what I’ve done, then why are they firing me? Is it because I’m (female or old or whatever)?”

The picture gets even worse if the manager recognizes some hardship such as, “We understand you just came back from open heart surgery” or, “We know your spouse is out of work.”

What the staffer hears is, “We know this is going to be extremely hard on you, but we’re going to terminate you anyway.” That’s enough to make anybody angry and also enough to make anybody think thoughts such as, “They’re firing me because I took sick leave. I wonder if I have a claim.”

No free severance pay

As to severance, Murphy’s advice is to offer it “only in exchange for a release” of claims against the office.

But be aware of the state and federal laws that apply. For example, an employee over age 40 has to be given time to consider any offer that includes a release plus even more time after accepting it to revoke it.

And to make sure the employee is aware of that, the employer needs to tell the person in writing to get legal advice before accepting the offer.

Out the door with no reentry

Another point of physical safety is protecting the office, particularly the data. Make it a rule that all fired employees have to leave immediately. Either accompany the staffer back to the desk to pick up personal belongings or say that the office will send them later.

But never allow anybody to come back after hours to pack up.

Again, people react to firings with emotion. The extra time is time enough to get depressed or angry and maybe get high or maybe get drunk – or maybe pick up a weapon.

A silent departure

The final question of firing is how to tell everybody else that the staffer is not coming back. And Murphy’s advice is to say no more than “Staffer A is no longer with us.”

Again, the issue is privacy invasion. Never tell anybody outside management the reason for the firing. To do so is to release personnel information without permission.









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