DISCLAIMER: This post gives a general overview of employee termination. It is not legal advice, and I am not your attorney. If you require information or advice applied to your unique situation, please make an appointment to discuss it with an employment attorney in your jurisdiction.
Several months ago, I was asked by a journalist how to fire an incompetent employee. She chose not to use my comments in her article, but I think it’s still important to explore the topic of saying goodbye to ineffective employees. The longer you are in business, the more likely you will have to do this. It’s not pleasant for either of you, but it can be done with compassion.
Notice How You Label Your Employees
Be mindful of the language you use and how you view employees who are ineffective in certain aspects of their jobs. In law, “incompetent” typically means the person lacks mental capacity to handle personal responsibilities. We don’t typically talk about competence much in an employment setting, in part because employers are supposed to screen for competence before they hire employees.
If you have decided an employee is incompetent, you are effectively admitting you made a poor hiring decision. If an employee has a mental disability, termination on that basis is unlawful discrimination. Consult legal counsel immediately.
More common than direct discrimination is indirect discrimination based on implicit biases. You might be discriminating against an ineffective employee because of a perceived mental disability. I have frequently heard even well-intentioned employers try to explain employees’ poor performance by declaring they are depressed, suffer from anxiety, or struggle with alcohol. Leave the diagnoses to the professionals and address them when reasonable accommodations are requested.
Take Responsibility for Your Actions
Unless an applicant lied about having a required credential or license, the decision to hire an ineffective employee was your error. Absent fraud, you know better than they do what is required to succeed in the job as it is done in your organization. Additionally, it is up to you to provide the training and resources necessary to produce the results you want. That might seem harsh, but that is how most courts, especially in New York, will view the situation.
Consult Legal Counsel
Make sure there is no real or perceived mental disability influencing your decisions. If there are, reasonable accommodations must be explored first–and carefully, under the advice of legal counsel. Call your employment lawyer. (That is not me, unless you have explicitly engaged me for that purpose. Reading my blog post does not mean you got legal counsel from me. This is just general information about employee relations.)
Act Quickly, Yet Compassionately
After you’ve consulted your attorney about any relevant mental disability issues and confirmed you simply hired someone with a bad attitude about working for you or who does not get the required work done, it’s time to look at the specific issues causing your desire to terminate the employment:
- Is this ineffective employee a bad apple, with nothing redeemable and to the core? Probably not.
- Have you provided reasonable training and coaching for the employee to succeed? Would additional investments of time, money, and energy be too costly?
- Does the employee demonstrate a lack of respect for the organization or their coworkers? If so, you must do something before morale among the higher-performing employees is depleted.
The good news is that you’re likely in an employment at-will situation, unless you created an employment contract that gives the employee greater protection from termination. This is usually offered to executives and key employees who could cause great harm to the business if they leave. Most employees lack the protection of an employment agreement. You can end the employment for no reason at all. The employee can, too.
As long as you don’t terminate an employee based on membership in a protected class, such as race, gender, or mental disability, you can send the employee packing immediately. Of course, that doesn’t mean you have to deliver the news harshly.
Do a Cost-Benefit Analysis
Hiring, onboarding, and training new employees is expensive. Even more expensive is defending a discrimination claim and paying a judgment. Don’t be too quick to label someone wholly negative and dismiss their contributions to the business. Remember, you once believed this person had the education, abilities, and attitude to do the job well. Perhaps a small investment in them might pay great dividends.
Double-Check Your Analysis
But before you send that termination letter, you would be wise to consider:
- How did you determine the employee does not respect the organization or their co-workers?
- What specific behaviors and incidents are you relying upon that support this determination?
- Could someone else interpret your decision as one based on biases about employees of similar gender, race, age, religion, mental capacity, etc.?
- Is there is a valid reason the employee is being disrespectful?
- Have you treated the employee with respect?
Deliver the News Clearly
If after careful analysis, you’ve proven the employee does not produce the work necessary to justify continued employment, keep the termination notice short and direct:
“Dear [First Name],
We both know this is not working out. Effective immediately, your employment with [Employer Name] is terminated. While you look for more compatible employment, you might be eligible for unemployment insurance benefits. [Insert information likely required by state law.]
Best of luck in finding work you love,”
Measure Twice, Cut Once
If you can’t honestly wish the employee well and accept that the relationship simply didn’t work out, there might be more driving the decision than you think. Make the Seven Choices and review your decision again, decreasing the likelihood of a legal misstep while you are angry or overwhelmed. We also recommend you discuss your analysis with your employment attorney.
Conclusion
Termination doesn’t have to be an ugly experience. It can be a very freeing experience that allows everyone to move on to situations more aligned with their values and aspirations.
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