Ten Things: How to Fire Someone

I am sure that by the title alone you realize there will not be a lot of the usual jokes and funny comments in this edition of the blog.  That’s because there is simply nothing humorous about having to fire someone, probably among the most difficult tasks faced by any in-house lawyer who manages people.  After questions about how to show value, the most frequent question I get from readers is “how do I fire someone?”  Actually, it is usually phrased as “should I fire [someone]?”  My initial thought is that if you have gotten to the point where you, as a manager, are asking these questions, it is not really a matter of “if,” it is a matter of “when.”  But, if you want to advance in the legal department, and if you want to become general counsel, it is almost inevitable that at some point in your career you will have to fire someone.  Is it ever fun? No.  Is it stressful? Yes.  Is it ever easy? Usually not (unless someone does something so awful that immediate termination on the spot is the only appropriate response).  I have had these difficult conversations numerous times over the course of a long in-house career.  Fortunately, not many.  But, I remember each of them very well along with what went into coming to the decision and preparing for the conversation.  This edition of “Ten Things” will set out some of the things you need to know to properly fire someone in the legal department:

1.  Do you really want to fire them?  First on the list is whether you have made a firm decision that they need to go?  Sometimes, as noted above, the decision is made for you by the employee, i.e., they do something so stupid that immediate termination is the only answer (e.g., stealing from the company, threats of violence, revealing confidential information on social media, etc.).  Or, sometimes, you are involved in a forced layoff and it’s simply a numbers game, i.e., you’re told to cut so many heads and you have to come up with the list (remember my lifeboat analogy from Ten Things: Making Yourself Indispensable).  More frequent, however, is the need to terminate someone for performance – or lack thereof.  This post covers that situation (though some of the points apply equally to any termination situation anywhere in the world).  The key questions you need to ask yourself are:

• Are they truly beyond hope, i.e., there is no way they can fix their performance?
• Is now the time? Do I have a plan to replace them and/or make up the work while I search for a replacement?
• Is there anything about them or their circumstances that, regardless of performance issues, I need to consider before I fire them?  More on this below.

Depending on how you answer these questions, the decision to move forward (or not) is clear and it’s time to start working on the plan as terminating someone for performance is not a spur of the moment event.

2.  Put emotion to the side.  Even when the answers to the questions above tell you it is time to move on, you may hesitate to take the next step. That’s natural. It could be that she has worked for you for years and is a good person who tries hard, or maybe he’s a friend outside the office and golfing buddy.  Regardless, as a manager, you need to put emotion to the side and make the right decision for the legal department, for the company, for the team overall, and – most importantly – for the employee.  If they are not performing as needed, you are doing no one a favor by being a “nice person” and letting them limp along.  If they need to go they need to go. Further, it should not come as a huge surprise to the employee when it actually happens because a good manager has been a) clear about expectations, b) continually giving positive and negative feedback,[1] c) helping those that need improvement to improve, and d) clear when they are not improving.  As for the latter, you should put underperformers on a formal performance improvement plan – which is a good idea when you think they might be able to fix things. 

3.  Documentation.  In the USA, the norm is “employment-at-will” which means that employees are free to leave your employment at any time and employers are (generally) free to terminate employees for any legal reason or no reason at all, though several states require that any termination not be in bad faith or for a malicious purpose.  It’s different in most places outside the USA. So, if you are terminating someone outside the USA, do your homework!  While employment-at-will is the norm, you cannot terminate someone for improper reasons (i.e., race, sex, disability, pregnancy, retaliation, etc.) or if they have a contract or other agreement (express or implied)[2] that provides for termination only for cause or “good reason.”  Regardless, given the litigious nature of our society, having documentation of the reasons for termination is a smart idea.  Especially, since the lack of documentation can give the employee a clear shot at arguing there were other (improper) reasons for their termination. Additionally, since it is generally worth some effort to try to salvage an employee who is not performing – given the cost and lost productivity factor – there should be little problem with your being able to document the issues and conversations you had with them to try to get their performance turned-around.  Documenting problems properly also means that you will not “surprise” someone if and when you need to move on.  When it comes to documentation, keep these things in mind:

• Keep it short, specific, and factual with dates (i.e., who, why, where, what, and when).
• As noted, a performance-improvement-plan (“PIP”) is a good way to document issues properly – work with your HR department to properly prepare and utilize.
• Do not create a false reason for termination – this will inevitably backfire.
• If you do not have the right documentation, consider delaying the termination to get the right documentation in place.
• Don’t forget the annual/twice-yearly review process as an opportunity to properly document any performance issues.

For more on how to properly document employee issues, see The Importance of Documentation In Human Resources.

4.  Talk to HR.  Before you fire someone, have a conversation with your HR team.  You’re not asking their permission – you are the manager.  But, they will be able to provide you with information, guidance, and procedures you likely have not considered.  First, they may have information about the individual that could impact timing, e.g., they are pregnant, their next batch of stock options vests on Wednesday, or some other reason why you would want to delay termination so that it does not appear to be about something other than performance.  Second, there are likely company procedures that must be followed in all cases of termination (and you should check the company handbook and make sure you have complied with any requirements and processes). Third, they can (and should) help you ensure the proper documentation is in place and provide you with the “script” for the meeting when the termination will occur (more on this below).  Fourth, they will help stop you from making any avoidable mistakes in the termination process. Simply put, bring in and consult with your HR team from the first point in time you are seriously considering firing someone – do not wait until the night before (or an hour before) the meeting.  That’s a recipe for disaster.

5.  Follow the law.  I debated even writing this one down but I have seen enough weird stuff in my career to know that everyone – even lawyers – need a firm admonishment to follow the law when it comes to firing an employee.  By this I mean don’t make up reasons to fire someone if the real reason is an illegal one, e.g., they have a disability that you do not want to make a reasonable accommodation for, they are a whistleblower that you don’t want around any longer, they are “too old,” you don’t like their religion, etc.  Inevitably, the truth will come out and if you are terminating someone for performance but it’s really for something else, you – and the company – will pay the price.  This is another place where working with HR from the beginning can help you avoid the many traps that await the unwary when it comes to firing someone.  The bottom-line, though, is simply play by the rules.  For more on this, see Illegal Reasons to Fire Someone + 29 Examples.

6.  Timing.  This is actually a two-part discussion.  The first part involves when to make the decision to fire someone, the second is, literally, what day and time to do it.  If there is one thing I have learned over my years as a general counsel is that if someone isn’t cutting it and you don’t see them changing, then it is time to let them go.  It’s better for them, for you, and the rest of the team.  Headcount in an in-house legal department is too valuable to waste on someone who just isn’t pulling their weight no matter how nice they are or how hard they are trying.  It may be a bad fit.  It may be they cannot do the work.  Whatever the reason, give them feedback, give them a chance to fix it, but then move on if it is clear they aren’t what you need. When it comes to “when,” there are many views on the right day and time. For me, the main concern should be the dignity of the person you are letting go.  Unless it is an instantaneous decision based on some truly horrible act, my advice is to pick a day early in the week and then late in the afternoon – after people are heading home for the day.  Terminating someone on a Monday or Tuesday gives them the rest of the workweek to start reaching out to their network or otherwise starting the process of finding a new job. Waiting until the end of the day saves them the embarrassing walk through hallways full of colleagues.[3]

7.  Prepare.  Firing someone is not something you should slap together at the last moment.  You need to properly prepare.  Below I talk about the “how” but a big part of that is ensuring that you have created your script (and stick to it), you have a checklist of everything that needs to occur, you have any and all materials and documents that need to go to the employee, and you have responses planned for situations where the employee gets angry, when they try to argue with you, or when they break down.  Of course, this all underscores how much of a toll firing someone takes on the manager (let alone the employee) but things will go more smoothly and be less stressful if you take the time to prepare for what’s coming.  If it is the first time you are firing someone, practice the entire process by yourself (or perhaps with a counterpart in HR).  Keep things in perspective – people have been hiring and firing people for a very long time.    Don’t psych yourself into thinking it’s more than it is.  It is a process and you will be fine when it’s over.  Regardless, since it’s likely you’ll have to fire more than one person over the course of your career learn whatever lessons you can and be “better” at it next time.

8.  The “how.”  Now for the most important part, the actual meeting to tell someone they are fired.  Here is a list of “rules” you should follow (subject to any guidance your HR department provides you – which is what you should follow):

• Set the meeting for an appropriate date and time.  See above re “Timing.”
• Find a conference room away from the legal department – don’t do this out in the open or in the main legal department conference room where people can/will be walking by or – worse – might pop in to make a joke (not knowing what is taking place).
• Do it in person, never over the phone – unless the phone is the only option under the circumstances.  If you cannot do it in person, then do it via video call.  They deserve to be able to see you.  Always keep the “Golden Rule” in mind because it’s the right thing to do and because studies show that a large part of a former employee’s decision to sue the company is based on how they were treated at this meeting.[4]
• Stick to the script.  The message is short and simple, e.g., “I am sorry, but this is your last day in the department.”  Do not get into long discussions about justifications, keep it to one sentence, e.g., “You have failed to improve your ….” Or “You’re not a good fit here because …”  HR can help you here.  The employee may want to vent, plead, try to change your mind, or even lash out at you.  And that is okay.  Let them talk.  It’s fine to listen to them.  But, they need to understand the decision has been made and it is final.  Be firm and empathetic but stay on message.  This is on you. Prepare. Prepare. Prepare.
• I’ll repeat – don’t let them think the decision is not final.  Be firm, concerned, and respectful.  Do not vacillate or let them think there is a chance to change your mind.  There isn’t.
• Have a second person in the room/on the video call.  Usually, this is someone from HR.  First, you want a witness to everything said. Second, it’s safer in case there is an unexpected reaction.  Third, HR will typically handle the paperwork piece – and are very experienced with terminations in case you start to go off-track.
• Make sure you have all of the necessary information, paperwork, and materials and then you (or HR) will explain what’s next for them. Anticipate their questions (e.g., benefits, unused vacation days, severance, etc.).  Lastly, inform them there will be a follow-up email – or other communication – with all the details and materials along with a contact in HR they can call or email with questions.
• End as graciously as you can.  Thank them for their contributions and wish them good luck, walk them back to their desk or out to the lobby (depending on the plan around personal items).  On the other hand, don’t be surprised if you or the company later get blasted on social media, LinkedIn, Glassdoor, etc.  That comes with the territory of being a manager.  Nothing good will come out of getting into a Twitter war with a former employee.  Just let it go or let HR or corporate communications handle any response in a professional manner.

9.  The exit process.  Once the termination is done, you need to follow a properly prepared exit process.  First, the employee’s access to company systems must terminate immediately, i.e., no access to email, document systems, the facility, etc.  They must return all company property, e.g., badge, laptop, phone, and so forth.  Second, think in advance about how best to allow the employee to pack up their personal belongings (which for lawyers tends to be more than a single box).  Depending on the time of day the termination occurred it might be appropriate to allow the employee to return to their desk or office (escorted) and gather up their personal effects.  More likely, especially in the legal department, you will arrange a time for the employee to come back (escorted) to clean out personal items. This allows them to leave immediately.  Third, ensure that the employee has the all necessary paperwork, any proposed severance package, etc.  The severance package, if offered, should be tied to a release whereby the employee agrees not to sue the company over the termination.  Even if you did everything exactly right, getting a release should be high on your list. Fourth, and only if there is some reason to be suspicious, you should consider reviewing the last 90 days or so of emails/downloads just to make sure nothing was going on concerning the employee taking company trade secrets or confidential information.  I know that sounds harsh but, depending on the circumstances of the termination, it may be the smart play.  Finally, consider in advance if you are willing to give any type of recommendation for them or even help them find another position.  As noted, sometimes things just “don’t work out” but that doesn’t mean you don’t believe the person could succeed in a different position at a different company.

10.  Plan for the next phase.  Terminating a member of the legal department is not going to be painless.  No matter how bad of an employee they may have been, you will need to distribute their work to the remaining team, ensure that any of their meetings or deadlines are covered, and begin the process of finding a replacement.  As to the latter, if you are smart, you started working with HR on the replacement angle as soon as you made the final decision to terminate the employee, i.e., prepared the job description, determined where to advertise the position (including whether to use an outside recruiter or not), identified potential targets, and so forth. Additionally, whenever someone is terminated it is a good idea to bring the team together and to acknowledge the fact that [someone] is no longer part of the team, that you cannot go into reasons because of the need to protect their privacy, but you want to assure everyone that this is not part of a general layoff nor are there more terminations to follow – it’s just a one-off event.[5]  There is no need to “badmouth” the former employee (nor will any good come from it).  If performance or attitude was the issue, most of the team will likely know why [someone] was terminated.  If it was apparent to everyone that [someone] was not performing up to the expected standard or was taking “liberties” or otherwise trying to get away with things, the fact that you terminated them will send the right message to the team and they will be glad to know that the standards they keep are required of everyone and that anyone who is not doing the same will be gone. The bottom-line is that you should be thinking about the next phase at the same time you are thinking about the termination decision.

*****

Firing someone is one of the most difficult things you will ever do as a manager.  The above will get you thinking about the right things, but here are a few additional resources that can give you more in-depth information and ideas:

• The Correct Way to Terminate an Employee.
• Ten Things You Should Never Do When Firing an Employee.
• The Global Employer Termination Handbook (order a free handbook from the Baker McKenzie firm)
• A Script for Firing People.
• How to Terminate an Employee Remotely.

Regardless, if the need to fire someone is present, do not hesitate to move forward with the termination.  It is rare that anyone ever says, “I was too fast to terminate so-and-so.”  Usually, it’s the other way around and you regret you did not act sooner.  That doesn’t make it any easier on you or the employee.  In the end, however, it is always for the best.  When the moment arises, step up to it, follow the rules, talk to HR well in advance, do everything the right way, and it will be okay.  I once had to fire five people in a row in one afternoon.[6]  It sucked.  But, I got through it.  So can you if you focus on the need to do what’s best for the department, prepare properly, and treat the employee with the utmost respect possible.   

Sterling Miller

November 8, 2020 

Ten (More) Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies Volume 2 is out.  It’s my second book based on this blog series.  As the ABA says, “All in-house lawyers need to own this book!” The ABA is smart.  Click here to buy it.

I have three published three other books: Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies, The Evolution of Professional Football, and The Slow-Cooker Savant.  I am also available for speaking engagements, coaching, training, and consulting.

Connect with me on Twitter @10ThingsLegal and LinkedIn where I post articles and stories of interest to in-house counsel frequently.  

“Ten Things” is not legal advice nor legal opinion and represents my views only.  It is intended to provide practical tips and references to the busy in-house practitioner and other readers.  If you have questions or comments, please contact me at sterling.miller@sbcglobal.net.

[1] See my two posts on the value of proper 1:1 meetings from the employee view and from the manager view.  These meetings are the perfect place for positive and (constructively) negative feedback.

[2] See Implied Contract in Employment Law for a discussion as to how an implied contract can arise and limit your ability to terminate an underperforming employee.

[3] For more, see Terminate on Tuesdays – Quickly and Humanely.  As an aside, the Society for Human Resource Management is a great website for HR issues.  Some of the content requires membership (which may be worth getting or asking your HR department if you can be added to their membership), but a lot of it is free.

[4] See Preserving Employee Dignity During the Termination Interview: an Empirical Examination.

[5] Again, on the more callous side of things, it also sends the message to everyone that your expectations are, in fact, high and if someone is not going to deliver they are gone.  Everyone usually works a bit better and a bit harder after a termination.

[6] It was a layoff and outsourcing of a group vs. performance reasons.  That didn’t make it any less difficult.