Breaking Up is Hard to Do: “Just the Facts, Ma’am,” in Business and at Work

I continue to encounter situations where managers have been trained not to give the factual reason(s) for terminating employees.  These managers instead seem to have been trained to say “it’s not working out” when conducting the termination conversation, and even when preparing the final termination letter.

No one relishes terminating employees.  However, from both an authenticity and legal standpoint, it’s imperative to give the factual reasons for the termination in both the termination conversation and the termination letter, especially as good preparation in the event that you may need to handle third-party (e.g., compliance) inquiries questioning the termination after the fact.

Here in New York state, managers at times also tend to be confused about whether or not they should give the factual reasons for an employee termination during the termination conversation and in the termination letter, because we are an employment-at-will state: that is, New York state recognizes that private-sector employment generally is at-will, and that employees may be dismissed from their jobs at any time with or without cause.

The observable / objective facts for a termination are always the right information to include, preferably the last step of a progressive disciplinary process where the employee has been given at least one final warning.  (There are cases, of course, of gross / willful misconduct, such as violence or theft, which are grounds for immediate termination without a final warning.  Or, if you’re following your own well-documented employee handbook policy and/or offer letter, and you release an employee for not meeting job performance expectations with the first 30 – 90 days of employment, a.k.a. the orientation period.)

For example:  if an employee has repeatedly violated your attendance policy, the termination discussion and letter should say so, detailing the exact violations, and the instances where the employee was warned prior to termination, dates included, as part of the facts.

Do not include your opinion in termination communications verbal or written, e.g., that you thought the employee was foolish for violating policy and being terminated.  Not only is it not relevant, it can potentially create legal exposure for you and your organization.

Unsure?  An HR subject-matter expert or a lawyer who specializes in Human Resources law can help ensure that your language is both authentic and compliant.

Breaking up is always hard to do, especially when it comes to terminating employees. Focusing on the observable facts will always minimize exposure, as well as preserve mutual dignity and reputation, in business and at work.



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