Breaking Up is Hard to Do: How to Minimize Risk in Employee Termination

By LEAH STIEGLER AND EMILY KENDALL CHOWHAN

This article about the challenges of employee termination is the third in a series entitled “Employment Law in Focus.” You can find the first installment on workplace romance here and the second installment on resolving conflict in the workplace here.

“Hey, Babe, it’s just not going to work out anymore. It’s not you, it’s me.”

We’ve all heard this classic line. Occasionally, it works, and a couple parts ways amicably. For the most part, though, vague reasons for breakups only lead the “ex” to question the real reason for breaking their heart. They may spiral, asking follow-up questions, reaching out to your friends, re-reading all your past communications, and looking for missed signs. (We swear we aren’t speaking from experience.)

An employee termination is no different. When an “ex-employee” starts questioning why you “broke it off,” they may even wonder if it was for an unlawful reason. That is what you want to avoid. A risk-averse termination is one based on the employee’s conduct. This usually falls into two categories: misconduct and performance.

MISCONDUCT: KNOW YOUR DEALBREAKERS

Like dealbreakers in a romantic relationship, misconduct includes factors that lead to immediate termination. Just as you go into dating knowing what your dealbreakers are, such as wanting kids or someone of the same faith, you should know what they are in your workplace, too. In your termination notice, you may want to include examples of the employee’s misconduct that would lead to immediate termination, regardless of any progressive discipline process.

For example, suppose an employee refuses to carry out key tasks, fails to align with the company’s mission, threatens other employees, violates the harassment policy, lies, steals, or cheats. (Okay, some of these are also good reasons for a breakup.) In that case, it’s time to let the employee go. When an employee engages in such misconduct, you can point to the express policy language in the termination notice, describing how they engaged in the conduct and, hopefully, part ways with clarity.

A risk-averse termination is one based on the employee’s conduct. This usually falls into two categories: misconduct and performance.

Remember that this works only if you enforce it fairly for all employees. Otherwise, an ex-employee may try to argue that the enforcement of your misconduct rules was discriminatory, retaliatory, or unlawful in some way.

PERFORMANCE: GET YOUR DOCUMENTATION READY

Unlike misconduct, where the documentation that supports an employer’s defense against an ex-employee’s claim may be limited to the termination paperwork, terminating someone for failing to meet performance expectations is a little more nuanced. Think of what your argument to a jury would be. Suppose an ex-employee sues you for retaliation, and you argue that you terminated them for misconduct, e.g., falsifying timecards. In that case, you can usually present a streamlined defense that includes a report showing their falsification of the timecards and the termination paperwork, which should agree. Smooth and hopefully unquestionable for a jury.

Defending your case when you terminate an employee for failing to meet expectations is more challenging. That is because determining whether someone is performing to expectations is often subjective. What one manager describes as failing to meet expectations may differ from another’s. (It may even be different for each juror!)

Further, your reasons for giving someone more chances may depend on business circumstances. You may keep a poor performer around because you are short-handed, or perhaps you know the employee isn’t meeting expectations, but they’re at least “better than the last.”

This may be similar to breaking up with someone because they are a poor communicator, or maybe you can’t put your finger on it but don’t feel secure, or you can’t imagine a future with them. (Okay, you’ve caught us: We speak from experience.). These breakups often lead to the “you’re just not a great fit” conversations, which are pretty hard to defend.

To prevent an ex-employee from thinking you’re ending things for an unlawful reason, such as retaliation, you want to ensure that you have documentation supporting your reasons. A good defense would include a few write-ups that specify how the employee failed to meet expectations and summarize those expectations moving forward. An even better defense would include a performance improvement plan that the employee failed to comply with. A great defense would include examples of other employees you held to the same standard.

All in all, no breakup is easy — and neither are those in the workplace. You may do everything by the book in an employee termination, but the end is still messy. The best you can do is be prepared for any future defense after an employee’s termination by having documentation showing your effort to set expectations and the employee’s failure to meet them.

Leah M. Stiegler is a principal and Emily Kendall Chowhan is an associate in the Labor & Employment practice at Woods Rogers PLC in Richmond, Virginia. They advise company leaders and their human resources departments on compliance with employment laws. They host the biweekly video series “What’s the Tea in L&E,” which is available on YouTube.