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By Justin M. Harrison, Esq.

 

This month's Legal Minute with Jackson Kelly PLLC picks up with the most difficult aspect of the employment relationship: the discharge.

 

Inevitably, every employer has to confront a painful reality -- some employment relationships cannot be salvaged. You have an employee whose performance is unsatisfactory, or perhaps he engaged in misconduct. You have chosen to terminate the employment relationship. What happens next?

 

First, you want to document the discharge decision. Why are you terminating the employment relationship? I usually encourage employers to prepare a discharge letter and give it to the employee during the discharge meeting. The reason is twofold: (1) You want to have a record of why the decision was made; and (2) you want to be able to give the employee something tangible for their records as well. I've had some clients over the years who try to avoid this. They believe that if you're terminating someone's employment, and that person is employed at-will, then you don't have to provide the employee with a reason. Technically, that's true. But if you don't tell someone why you're terminating their employment, they will come up with their own reason - and it's going to sound a lot like retaliation, discrimination, etc.

 

Second, give some consideration to when you're going to carry out the discharge meeting. If it's simply a performance issue, you're likely better off waiting until the end of the work day, and probably the end of the work week. If the issue involves misconduct like harassing or threatening behavior, then the discharge meeting should happen reasonably soon after the discharge decision is made. If the employee has not been suspended, you don't want that person continuing to appear for work after the discharge decision has been made.

 

Third, who will participate in the discharge discussion? Ideally, you will have two people meeting with the employee. One person should be an authority figure - typically a supervisor or manager, or maybe your human resources director. That individual should take the lead on the discussion and relaying the discharge information. The second person will serve as a witness and should take notes of the meeting.

 

Fourth, you should plan what you're going to say during the discharge meeting. The information that you share should be factual (e.g., "We have chosen to terminate your employment because of concerns regarding your performance."). You want to avoid debating the employee or making the employee feel unnecessarily bad about the encounter. Most employees will want the meeting to end as soon as possible. Some will want to vent a bit and that's ok. Listen. Take notes. But be firm in the information that you're relaying.

 

If the employee is acting professionally about their departure, allow them an opportunity to retrieve their personal belongings. If the employee is upset or acting inappropriately, ask him to leave the premises and you can forward their personal belongings to him at a later date.

 

These are just basic guidelines. Every discharge situation is unique, so it's important for employers to understand the process, rationale, and personalities that are involved in each discharge scenario. Some situations will be more complex and difficult to manage, but a little forethought and planning will help avoid aggravating an already uncomfortable encounter.

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Justin M. Harrison is a labor & employment lawyer at Jackson Kelly PLLC. He is available for consultation through a special retainer relationship with the WVPCA. Justin can be reached at 304.340.1358, and you can follow him on Twitter @wvhrlawyer.

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