6 Tips for When You Are Afraid to Fire an Employee

The terrible shooting at the Henry Pratt Company in Aurora, IL is devastating. From what the news has reported as of today, the killer was an employee who was called into a meeting to have his employment terminated. He killed the HR manager, an HR intern on his very first day of work, the plant manager and two other employees. 

This incident is a stark reminder that one of the most difficult – and potentially dangerous –tasks that any employer can undertake is to fire an employee. While there is no way to completely eliminate any danger, there are things employers can do to minimize risk factors when performing this task.

1 - Perform Background Checks

Let’s go all the way back to the very beginning when you’re hiring someone new. Whether you are a small shop or a large enterprise, you should hire a reputable screening company to perform due diligence on your applicant. While there are laws that must be followed regarding how to obtain and use the information, the benefits of knowing about criminal conduct, hazardous driving behavior, drug offenses, and the like cannot be understated. 

In this instance, news reports have stated that the killer had six prior arrests for traffic and domestic violence. As our society knows all too well, domestic violence is a clear predictor for future violent behavior. Knowing about someone’s past can help protect your company’s future.

2 - It Shouldn’t Be A Surprise

No one likes to be blindsided. If you’re terminating someone for cause, then there should be a history of meetings to try to initially correct the behavior. Nothing breeds anger faster than feeling ambushed. For example, don’t tell an employee she is doing a great job if she’s not; and then terminate her. This naturally creates resentment and a sense of betrayal. 

In the same way, don’t wait until an annual review period to let someone know they are in danger of losing their job. These are conversations that you should be having on a continual basis. All companies, including those with a single employee, need to have a clear Employee Handbook that lays out company policies, guidelines and expectations. This creates a neutral reference that anyone can refer to for guidance.

3 - Be Human

Losing a job is never a pleasant thing. You are the employer and the one in charge of the situation. You need to be in charge of your emotions. Don’t fire out of anger or your own sense of disappointment. Be in control before you have the termination meeting. Get yourself to a point where you can be human and compassionate. This is a person losing their income who likely cannot afford to not have a job. This is upsetting and scary and can lead to people doing rash things, especially if they feel provoked. 

You should set up the situation to be as non-confrontational as possible. This isn’t a time for the airing of grievances, or listing out all the ways the person has failed as an employee. Since there are no surprises, the employee is aware of the performance shortcomings. This meeting is short and to the point – the employment relationship is ending.

4 - Plan Ahead of Time

All terminations need to be thought out ahead of time; this is just especially true for terminations where you suspect the person might react in a threatening or violent manner. You need to plan when the meeting will be held, who will be in the meeting, where it will be held, where people will be seated, what else will be in the room, who will be speaking, how long the meeting will last, and how the employee will enter and exit the meeting and office building.

Often people wonder what the best day of the week is to fire someone. While Friday seems like a perfect day – it dovetails with the workweek so nicely – it is not particularly friendly to the employee. When someone is fired, there are a number of things they need to do – start a job search, file unemployment claim, and the like. Those tasks are difficult to do on a weekend. Monday is also not preferred because an employee can become resentful that they had to come in at all that day. This means that the traditional days for terminations are Tuesday through Thursday.

Of course, I shouldn’t have to mention that you should ensure you are not firing an employee, especially a potentially dangerous one, on or just before his birthday or anniversary; nor should you terminate the employee right before or during a holiday season. Doing that is simply asking for escalation.

The next question is what time should the termination take place. There are arguments for and against nearly every time. My personal preference is right before lunch. Again, this allows the employee to leave and still accomplish personally necessary tasks that day. It also allows the employee to exit the office more discreetly as there are often multiple comings and goings at that hour.

Who will be in the meeting is important, especially if you know that the employee has personal problems with someone else. Needless to say, that person should not be in the termination meeting. Of course, if that person is you, the employer, you will most likely need to participate, but you should invite at least one more person to the meeting on your behalf. For instance, I was recently asked by a client to be present at a disciplinary meeting with an employee to help explain things and to interject if/when the discussion became personal. My personal belief is that all terminations take place with two people from the company in the room.

The location of the meeting is also very important. It should not be in the employee’s office, if they have one. People are highly protective of their offices and being fired on your “home turf” can only create ill will. Also, you never know if the employee has a hidden weapon at hand, either in their office or briefcase or purse. If you have a neutral room, such as a conference room, it is preferred. I rarely advise clients to go to a public space, such as a diner, to conduct the termination. You do not want to potentially create a scene in another business’ space. It also can lead to the employee feeling publicly humiliated, which can lead to bad consequences.

It may seem silly to plan on who sits where, but it can be very important. When I’ve had to terminate employees who are physically intimidating and used that trait, I made sure I had someone as physically intimidating in the room with me and seated right next to them. Proximity can lead to the employee reconsidering certain actions. Obviously, you should never be in a situation where you have your back to the person being terminated. In addition to being rude, it makes you vulnerable. If you anticipate potential harm, you should make sure you are closest to the door and cannot be blocked from exiting.

Plan out who will be the person primarily speaking. While I advise clients to have two people in the room, that does not mean both are speaking. That can lead to the person feeling ganged up on. Rather, one can be there to provide a friendly face, a comforting smile, to pass over the tissues, or to sit next to them and remind them that certain actions are ill considered. The person who speaks should plan out a script ahead of time, again, without any recriminations that lays out the facts of the termination in a clear and concise manner. This person should never intimate that there is any room for negotiation or reconsideration, or that if it were up to him or her there would be a different outcome. 

You should plan on the meeting ending in a short timeframe. It’s not a surprise, it’s not a time to rehash old positions, it’s a factual statement of the termination of employment, sharing the next steps with respect to payments, COBRA, return of property, etc.  And quite frankly from a lawsuit perspective, the less said the better. This meeting should not last more than 15 minutes. A caveat to this point is that there should not be any breaks taken in the meeting. If someone is getting emotional, do not offer to break for ten minutes while they go to the bathroom, or their office, or outside for fresh air. Instead, conclude the meeting. There are instances where an employee used the break time to go to their car, retrieve a weapon and come back to kill the people conducting the termination.

This final piece is key, especially when you are concerned about potential violence: how will the employee arrive and leave the termination meeting? If you have an employee that you are even slightly concerned about potential violence, do not allow them to go back to their office or workstation. Instead, during the meeting, a trusted and discreet person should gather the employee’s personal belongings and bring them near to the location of the termination. These belongings should be limited to briefcase or pocketbook, coat, and the like. It should not be an employee’s family photographs, books, etc. You will have time to gather those after the employee has left and have them delivered to the employee. During the meeting, you must be sure to collect from the employee any keys or passcards to the office.

If violence is anticipated or if threats are made, the employee should be escorted out of the building immediately upon the conclusion of the meeting. To the extent possible, it should not resemble a “perp walk.” If you’ve planned it near the lunch hour, it should be relatively easy to walk together to the exit without too much additional attention. 

5 - Should Security Be Involved?

However, if threats are made or intimated, have security on hand to help you escort the person out of the office. There are private security firms you can hire for this very purpose, as well as security personnel in large office buildings, and local police. If you are concerned about escalation, you should have the security personnel in the office, adjacent to where you are meeting with the employee so they can monitor the situation and intervene if needed. There may be some instances when you should have the security personnel present throughout the entire meeting as well.

6 - An Ounce of Prevention

Violence can erupt when an employee feels disrespected and unappreciated for his time with the company. One way to help mitigate this feeling is to offer a severance package. This can be difficult for a small business to do, but it can often save thousands of dollars, and potentially heartbreak. In a state like New York which has at will employment, there is no obligation on the part of the employer to pay the employee for anything but services already rendered. Legally, you can pay the employee through the day of termination and no further (setting aside the question of paying for accrued but unused paid time off). The concept of two weeks’ notice is simply a courtesy, most often that employers request but are not obliged to give. You can couple the offer of severance with a full legal release. This ensures that the employee doesn’t take the additional monies and use them to finance a lawsuit against you. 

In addition, there are a number of outplacement firms that you can hire to assist the ex-employee with finding new employment. The faster she is gainfully employed, the faster she is likely to resolve any anger issues without resorting to violence.

Conclusion

There is no way to guarantee you can prevent violence during a termination. These recommendations can help potentially lower the threat and provide you with opportunities to de-escalate or escape should a situation go wrong. If you are concerned about an employee’s potential for violence, do not hesitate to reach out to us at LOVE LAW FIRM for assistance. Don’t go at it alone.

Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to Business and Intellectual Property Law. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
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Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law