I revisit this topic from time to time, and I have written entire articles and given two hour talks on the subject. But it feels like it may be time for a refresher course.
I spend a lot of time reviewing wage and hour laws because they are very technical in California and are the basis of so many lawsuits. In many cases, however, these wage and hour claims emanate from the way in which we handle employee terminations.
In California, wage and hour lawsuits are the low hanging fruit. They are the easiest to bring. Almost every employer in California is making some technical mistake or another. When disgruntled former employees seek out an attorney, they are not usually brooding about a missed break or a paystub violation. Their lawyer may divert their anger into one of those wage and hour allegations. But that is not what motivated the employee to seek out the lawyer.
These unhappy employees want legal advice because they believe they were mistreated or disrespected, and it usually centers on their termination.
Let’s face it, sometimes these employees have already decided to seek representation, even before they leave. But in many cases, the way in which you approach an employee separation may determine whether you are embroiled in legal action for the next year or two.
So, let’s break it down. How do we reduce the anger in departing employees?
Keep in mind that losing a job, even for this current generation of workers, is still considered to be one of the most traumatic events a person experiences. Nevertheless, there are times when business necessitates that we part ways with an employee, either because of their own behavior or our business needs. Yet, there are steps we can take to diminish the amount of stress and trauma caused by that separation.
The key to reducing the stress of a termination and resulting anger by departing employees is better communication. While there are exceptions to every rule, for the most part, employees should not be blindsided by a termination. They should know it has been coming, and they should know why. And when you finally have that meeting to part paths, the reasons should be explained, and the employee should be provided a written notice of that explanation.
Now I hear you all saying that you thought California was an at-will state. Indeed, Labor Code Section 2922 does state that in the workplace, a party without an agreement to the contrary may be terminated without cause or notice to the other. But what the Labor Code does not say is that employers may never terminate an employee for a wrongful or discriminatory reason. And in California, there are literally dozens of prohibited reasons for firing an employee. The most common these days is the allegation of whistleblowing, that is, terminating an employee in retaliation for making a complaint regarding protected conduct.
In the absence of information, employees will assume the worst. So will their lawyers. Consequently, if you and your managers have not done a good job of explaining to the employee the basis for the termination, the employee will fill in that void with information that suits them. And all of that reasoning behind your action better be in writing. As the kids like to say, if there’s no picture, it didn’t happen. And if you have no documentation in your file, whatever communication you had with that employee did not occur.
This isn’t necessarily because employees lie, although sometimes they do. More importantly, people are never the villains in their own story. It is a psychological phenomenon that is true now more than ever. People will reframe events to support the narrative that they are the victim, to deflect accountability for whatever conduct may have rendered the result.
It’s difficult to change that theme, but we can diffuse the effect by better managing employee behavior and workplace separations. That starts with communicating our expectations, from day one. Clarity about job responsibilities is key. It begins with offer letters, good written policies, and job descriptions. And this rule applies to everyone, from the host working their first job ever, to the seasoned executive, stepping into a top role at your organization. Even if you are hiring a long-term professional who should know the job, they may not know the job at YOUR company.
Then, employees should be provided course corrections and guidance as needed throughout their employment. If employees are doing a superior job, tell them. Encourage them. They may be your rising star that will take it to the next level. But they may not know how to get there unless we tell them. And if they are falling short, we need to communicate that as well. In the absence of information, employees will assume their performance is satisfactory. If it is not, it is on us to tell them and to tell them why. And remember, document these conversations. They could be notes in a file or a manager log, or they may even be emails. But put something in writing. Then those notes can be used to craft a more formal performance evaluation or written warning if circumstances warrant.
The first time you decide to meet with an employee about their unacceptable performance should not be to fire them. Of course, there are exceptions to this rule. Sometimes, egregious behavior warrants immediate termination. Or you may have an employee who has only worked with you a few weeks. But in most circumstances, employees should be given a chance to correct their behavior before we pull that trigger. While it is not required legally, it feels fair. And treating employees fairly goes a long way to reducing that anger I talked about above.
If we have determined it is really time to terminate, consider the best setting to manage the emotions. If possible, all separation meetings should be held in person, in a private, respectful environment. The person communicating the message should be someone the employee knows, and it is often wise to have a witness. You should already have a document ready to hand them, which explains the reasons for the termination. This termination letter may well be read by a third-party, such as a potential attorney, government agency, or even a well-meaning family member. Craft the letter with the appropriate level of detail and sensitivity.
The decision to terminate an employee is complicated, and it can often tread on tricky legal issues. Managers should be trained to consult with human resources or upper management prior to ANY termination, and you all should seek input from legal counsel when appropriate. I have been consulting on these terminations for nearly 40 years and getting that second opinion may well be worth the 10-minute phone call or email.
This is a complicated topic, and this article only provides a general overview. There are nuanced situations, for example, managing a reduction in force or corporate reorganization, or ending the employment of a long-term or disabled employee or an employee on an extended leave of absence. Each of those topics is worthy of an entirely separate talk or article. As always, please reach out when you need. You all know how to find me.
And did you all see how I dropped in the hint about manager training? Don’t forget to give your managers the tools and resources to run your company properly. They are the ones on the front lines.
