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From Hello To Goodbye

Proactive Tips For Maintaining Positive Employee Relations

Society For Human Resource Management

When All Else Fails: Terminating the Employment Relationship

Well, here you are at the end of the employment relationship. You have coached, counseled, and attempted to correct, yet the employee's behavior is still not meeting expectations. Thus, you have concluded that it is time to terminate the employment relationship. So what are some final steps you should take to ensure you have dotted and crossed your proverbial i's and t's? Consider the following.

Pre-Termination Checklist

Use the following five questions as a pre-termination checklist. This can help in a variety of ways — from preparing your presentation for an unemployment insurance hearing to defending your action before a federal or state agency or local human relations commission, and, perhaps more importantly, helping to ensure consistent treatment of all employees who are in similar situations.

Forewarning

Are you able to describe when and how you set your standard or expectation for this particular employee? Or is this a case where your position is, "Aw, come on, everyone knows you are supposed to ..." or "Everyone knows you are not supposed to ..." While this might hold true for lying, cheating, and stealing (although certain actions of select political, business, and other leaders might lead one to conclude that nothing can be taken for granted), it is not the case for most performance standards. Take, for example, excessive absenteeism or tardiness. I find this is a common standard that managers believe with all honesty and conviction that everyone shares and thus there is no need to define it. But, when discussing the matter with peers and colleagues, they regularly find that their expectations may not match those of their peers, including managers and supervisors in the same department, as well as across the organization. Try the following exercise with your management team, particularly those managers working in the same department. Ask them to write down on a sheet of paper their answer to the question, "How many unscheduled occurrences of absence in a six-month period do you consider to be excessive?" Then go around the room and have them answer one at a time while you record the answers. You can be pretty much guaranteed that you will find differences, sometimes vast, among their answers. Some may say three; some may say six. Now there may be very valid reasons for having different standards in different departments. For example, if I am an HR administrator in a hospital (which I was for nearly 10 years), it is likely that my attendance and punctuality standard for my HR staff would be different and possibly more lenient than the standard a director might have in a nursing unit for the direct care providers. Why? There is at least one valid business reason: The impact to business operations when my HR staff is late is less or at least potentially less than when a direct care provider is late or absent. There is no direct harm if a file is left unattended for some period of time. There may be dire harm if a patient is left unattended for any amount of time. So remember that what you take for granted as a reasonable expectation may not be shared by others; communicate your expectations from the beginning of the employment relationship.

How? Consider developing a new employee orientation checklist list (see Chapter 7). When an employee does not meet your expectation, provide objective and specific examples of desired performance (see Chapter 3). And, throughout these processes, remember to document these activities (see Chapter 2), because only then will you be well positioned if and when the time comes to demonstrate how and when you provided the employee with forewarning of your expectation.

What if you find managers within the same department have different expectations? Talk about the differences and why they exist.

Are the rationales justified based on business need or are they subjective? For example, let's say there are three managers in the accounting department: one in accounts receivable (A/R), one in accounts payable (A/P), and one in payroll. Each supervises one to three employees. One manager believes an employee should have no more than six unscheduled absences in a six-month period; the second manager believes an employee should have no more than four unscheduled absences in a six-month period; and the third manager believes an employee should have no more than two unscheduled absences in a six-month period. The managers should focus on the impact that employee absences have on business operations, compare and contrast the impact, and understand why they have set different standards. The A/R manager may indicate that unscheduled absences have the potential to delay the collection of money from clients and customers, which reduces the company's cash-on-hand, which might impact its bond rating or leave less money available for investments and thereby reduce interest income. The A/P manager may indicate that unscheduled absences have the potential to delay payments to vendors, which may result in late fees or charges, causing unnecessary costs to the company. The payroll manager may indicate that unscheduled absences have the potential to delay the processing of payroll, which could result in fines if employees are not paid in a timely fashion, not to mention the bad employee morale that may be created. All three concerns are tied to business operations and are valid. They might not, however, justify such a broad difference in the expectation. Thus, the managers might work with human resources to determine what is the company's average absenteeism rate per employee and agree upon one standard that all three managers will use for the entire accounting department.

Evidence

Do you have evidence to corroborate your position that the employee has failed to meet expectations? Evidence usually comes in one of three forms:

Employee's admission. Often an employee will admit to having done something incorrectly or inappropriately. But don't stop there. Asking, "Why?" can be a powerful inquiry; just knowing what an employee did may not be enough. Understanding why the employee did or failed to do something often opens doors to learning about systems, processes, training, communication, or other systems that need some fine tuning or are just not working. If that is the case, both you and the employee now have the opportunity to learn. You might establish a new training program or implement a new (or adjust an existing) policy or procedure. Sometimes, however, the employee does not admit to an error or omission despite evidence to the contrary. Thus, you will need to consider what other evidence you have to substantiate your claim.

Witnesses. You may have one or more witnesses who will report that they saw or heard or otherwise have knowledge of the alleged behavior. Having two or more witnesses is generally better than having just one witness. But what if you have just one witness and it becomes a matter of one employee's word against the other? Consider whether the witness would have any reasonable motive for fabricating the report. Does the employee have any reasonable motive for denying the allegation? This is where judgment comes into play. While it is subjective, you will need to determine whether it is more likely than not that the witness is telling the truth. Sometimes you may be left with a non-finding; that is, you cannot determine whether it is more likely that one employee is telling the truth over the other. In this instance, you might take this as an opportunity to meet with the employee to coach, counsel, educate, and/or reinforce a policy or expectation with regard to conduct or work performance. Document that meeting (see Chapter 2); if the matter should arise again, your documentation may help establish the likelihood that the employee has, in fact, engaged in the alleged conduct or failed to perform as expected or required. It will at least help establish the first element of forewarning and demonstrate that you did set the standard or expectation. The same could also be the case of multiple witnesses who may, on occasion, collude to create a story to get a coworker they dislike in trouble. Be open to considering these options. Often you have to conduct a credibility assessment. You may have to determine which story is more accurate. This is where seeking assistance from human resources or another management colleague can help. An objective set of eyes and ears may help you decipher the truth of the matter. If you don't have any witness(es) or the employee's own admission, don't give up yet. Try and find some tangible evidence.

Tangible evidence. You may have tangible evidence — such as time-clock punches, video recordings from security cameras, e-mail or voice mail messages, Internet logs, written notes, etc. — that will corroborate your allegation. If you have none of the above, you may want to reevaluate your impression or opinion of the employee's performance and ensure that you are not biased in any way. This does not mean you had any ill-intent; rather, sometimes we can be influenced by what we have heard about an employee's performance, attitude, conduct, etc. If you hear that an employee is initiating gossip about a coworker and there is suddenly a report of a rumor being spread around your department about a coworker, you might immediately assume that you know who started the rumor or gossip. Don't assume; get evidence to substantiate your position.

Proper Investigation

Have you conducted a proper investigation prior to making your final decision to terminate employment? Just because you have your evidence as listed above doesn't mean the case is closed. Perhaps one of the most important elements of conducting a proper investigation includes getting the employee's side of the story before you make your final decision with regard to any adverse employee action. It has happened more than once that an employee tells the story of being called into the manager's office and asked to give his side of the story regarding an incident and, after he does so, the manager then turns over a sheet of paper that was sitting on the manager's desk during the entire meeting. The sheet of paper turns out to be a written notice of corrective action, which the manager then issues to the employee. What message did the employee just receive? That action speaks volumes to the fact that it did not matter what the employee said; the manager had already made up his mind. Be open to explanations, even if the conduct is unacceptable. Take sleeping on duty as an example. I remember a situation in which a director came to human resources and wanted an employee fired for sleeping on duty. The employee had already received written, corrective action for sleeping on duty, and this was also in a direct patient care area so the potential impact in failing to respond to a patient could have had serious negative consequences. The director had done a good preliminary job of gathering evidence. The director produced statements from at least two coworkers who had observed the employee sleeping. When I suggested the director get the employee's side of the story, however, the director declined. The director's position was that there was no acceptable reason for sleeping on duty, and since the employee had already been warned once, termination was warranted. So, the employee was fired for sleeping on duty. The matter went through the grievance process and then to arbitration. The arbitrator reinstated the employee without back pay. Why? The arbitrator wrote that while he had reason to doubt the employee's veracity (the employee said she was not sleeping, only resting her eyes) he added that by the director's own admission she had failed to conduct a thorough investigation; she had failed to get the employee's side of the story before terminating the employee. What could be a reasonable excuse for sleeping on duty? Perhaps the employee had just been prescribed a new medication for a medical condition and the medication made her sleepy. Without getting that information first, you might have not only terminated the employee without knowing all the facts, you may also have a discrimination charge on your hands for failure to engage the employee in an interactive dialogue or provide reasonable accommodation under the Americans with Disabilities Act.

Lack of Discrimination

This element goes beyond what you may think when you hear the term "discrimination." It goes beyond legally protected classes such as age, race, religion, national origin, disability, sex, etc. It goes to the issue of equitable treatment. Ask yourself, "Is it your obligation as the employer to treat your employees equally or equitably?" Most likely the answer is the latter. You may not want to treat all your employees exactly the same or equally; you want to reward your top performers and provide incentives to those who go above and beyond. Likewise, you may not want to impose the same sanctions or penalties to employees who are not similarly situated or who have different situations. Take attendance and punctuality as a common example.

A key question is whether you have treated this employee the same as others who have been similarly situated. This is where we distinguish between equal treatment and equitable treatment. Let's say you are preparing to terminate an employee who has been coached, counseled, and received corrective action for excessive absenteeism, and who has now incurred a total of 10 separate and unscheduled occurrences in the last six months. So you might ask, has any other employee incurred 10 unscheduled occurrences in a six-month period and not been terminated? If your answer is "Yes" then your next step is to determine why you are treating two employees differently who appear to be similarly situated. Perhaps it is because they are not, in fact similarly situated. While both have incurred the same number of occurrences in the same period of time, the circumstances may not be the same. Imagine the first employee's absences were all related to the same reason, such as caring for a critically or terminally ill relative, and the employee has worked for you for several years and has an otherwise exemplary work record. The second employee's absences, however, have been for a variety of unrelated reasons, none of which are particularly unique or exigent, and this employee has worked for you for less than one year and is only a marginal performer. While the two situations appear on their face to be the same, the circumstances are quite different. In this case, issuing corrective action to the latter employee and not the former may be justified.

Penalty Meets the Offense

Finally, ask if termination is warranted; e.g., is it reasonable to expect that any lesser penalty would correct the behavior? If the employee has already been coached and counseled and has received corrective action on three prior occasions, then it may be unreasonable to expect that a fourth would make any difference. But when an employee has not been given at least one or perhaps two opportunities to correct the behavior, it might be reasonable to think that you could salvage the relationship, not to mention get a positive return on your investment (ROI) on the time and money you have invested in the recruitment, selection, hiring, and training of this employee.

Policy versus Practice

Managers may ask, "But, if employment is at-will, why do I have to jump through all these hoops? Why do I have to coach, counsel, and correct if employment can be terminated at the will of either party?" (see Chapter 6). The key is in considering what you must do as compared to what you should do, for any variety of reasons. And even that is difficult, since what "should" be done is often assessed in the eye of the beholder; e.g., what is best for the employer or the employee. Barring the existence of any employment contract or collective bargaining agreement to the contrary, you do not have to coach, counsel, or correct prior to termination unless you are in a state that does not recognize at-will employment, such as Montana. But go back to the beginning of this chapter and you will find the answer. You help to protect yourself and your company and reap the greatest ROI on your recruitment dollars when you protect your employees. Whether you have a corrective action policy or not, and even if you have a very clear and express at-will employment policy in your employee handbook, also consider your past practice. It is likely you have given other employees opportunities to correct their behavior or performance informally, even if not formally. So, ensure your action is consistent with not just your written policy but also your past practice. Do so not because you have to do the same thing for every employee but because you need to be able to distinguish why you did "x" in one instance and "y" in another. Consider the discussion we just had under the element of lack of discrimination and equal versus equitable treatment.

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Excerpted from From Hello To Goodbye by Christine V. Walters. Copyright © 2017 Christine V. Walters. Excerpted by permission of Society For Human Resource Management.
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