By Aleigh Acerni
Assistant Editor

Though it may be satisfying to fire a troubled employee a la Donald Trump, simply barking, “You’re fired!” may not be the best approach. In fact, it could leave you open to all sorts of problems—including a wrongful termination lawsuit.

So take a moment to step back and re-evaluating your firing process. Here are some points to consider.

Rule No. 1: Document

By the time you’ve made the decision to fire an employee, you should already have given him or her evaluations, warnings and mentioned the inevitability of termination should performance not improve. You should also have every one of those items well documented and at the ready, should you need to back up your reasons for the firing in the event of a wrongful termination lawsuit.

“Make sure your reasons for termination won’t violate state or federal law,” adds David McCormack, chair of the employment practice group for Buist, Moore, Smythe and McGee PA.

Crafting a termination letter may not always be a necessity, and is not required by South Carolina state law, according to Shawn D. Wallace, partner and certified specialist in employment and labor law at Young, Clement, Rivers LLP. “I don’t think it’s a good idea to have [a letter] ready if you haven’t yet heard the employee’s side of things,” she says. “Talk to the employee first, consider what he or she has to say, then decide whether or not to terminate and evaluate if a letter is needed.”

According to Wallace, wrongful termination lawsuits are often the result of a terminated employee feeling unheard or believing the process of termination was unfair. It should never be a surprise when an employee is terminated, she says.

This may sting a little…

Then, just do it. Don’t prolong the inevitable. Traditionally, the best time to let someone go was considered to be Friday afternoon. However, if your company doesn’t have a policy in place, act on your instincts—earlier in the day or even in the week is appropriate. You may want to give the employee a chance to remain the rest of the day or leave immediately with full pay for the workday.

Before the meeting, only divulge the goings-on to those who will be present. A leak beforehand will only worsen the situation and potentially embarrass the employee. During the termination, get to the point quickly. Explain in brief why the employee is being fired, and summarize the events and warnings leading up to your decision.

However, the most important thing about the entire process, says McCormack, is to tell the truth. “Don’t sugar coat anything,” he says. “Don’t be nasty, but don’t be afraid to hurt someone’s feelings.”

Truth should ideally start with the evaluation process, he adds, because it’s difficult for a lawyer to defend a company that terminates an employee because of poor performance when all of the supporting evaluations are average or above, simply because the supervisor didn’t want to hurt anyone’s feelings.

If offering a severance, have the check in hand (as well as a final paycheck, or all monies due), or at the very least, put it in the mail the next day. For the severance, detail the offer and present the terminated employee with a forfeiture document.

Let me see you to the door

At the end of the meeting, answer any questions the terminated employee may have.

Certainly allow the employee to say goodbye to co-workers and collect any personal items. If, by chance, the employee loses control or becomes verbally abusive, take the appropriate steps to ensure other employees’ safety. However, calling the police or having a terminated employee escorted from the building should remain emergency measures.

Firing an employee is not easy, nor should it be taken lightly. That said, it often needs to be done, and an appropriate attitude makes the experience the most bearable for all parties involved.

Aleigh Acerni covers workplace issues and departments. E-mail her at aacerni@crbj.com.

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