If You Have to Terminate…. Stay Safe!

As I am about to publish my next Guest Blog by Mike Perkins, President of Frontline HR Solutions a 25 year Legal and HR Professional Consulting Practice, I would like to introduce a recent workplace homicide – suicide at a Walmart Distribution Center, Red Bluff, California by Louis Lesley Land a former worker who had been fired in 2019 after failing to show up for work.

On Saturday, June 27, 2020, Louis Lesley had apparently crashed his car into the center shooting his  semiautomatic rifle. Inside, he shot & killed one co-worker, injured 4 others, before being shot and killed by Red Bluff Police in Parking Lot. 

This particular story is a timely one as it relates to terminations and the potential risks, giving interest to this informative Guest Blog by Mike Perkins on the topic of “terminations”.  We both agree that while the process is the official termination of employment, we believe that the word has a negative connotation and the process needs to be considered a potential business-security threat.

I commend the Walmart Leadership and Security Teams for taking the appropriate workplace security and workplace violence prevention violence response risk mitigation measures, to prepare the workplace and protect the workforce against the potential threat posed by an armed intruder.

Here’s Mike Perkin’s information packed Guest Blog.

In this time of furloughs, layoffs, high unemployment, financial tension and uncertainty about the continued viability of many organizations, emotions are fragile and, sometimes, quite volatile.  Many companies are having to make difficult decisions about reducing their workforce for the unpredictable times that lie ahead.  Some companies are deferring employment decisions as long as possible while others are fighting for survival and having to make immediate cuts.  Essential workers who are still actively employed are worried about exposure to illness at work, while commuting on public transit, and during breaks.

Others who have been considered non-essential workers are often sitting at home wondering if they will still have a job, when they can return, and which creditors should be paid over others.  As the tension increases, substance abuse, domestic abuse and suicide rates are rising.

Terminating employees is always fraught with risk.  All these additional factors combine to exponentially increase the stakes. When it becomes necessary to discharge an employee, employers should do everything possible to reduce the tension and the risk for everyone involved.  Even before the Coronavirus-related growth of phone and video conferencing, I have been encouraging employers to consider utilizing alternatives to personal meetings and the use of “Administrative Leave” as practical strategies for risk mitigation.

Last year’s tragic workplace shooting at the Henry Pratt Company in Joliet, Illinois, is a grave reminder of the danger that surrounds the discipline and termination process.  In that situation, an employee who knew he was likely going to be terminated that day, brought a gun to work and shot his plant manager, HR manager, an HR intern (on his first day at work), his union chairman and union steward, a co-worker, and several police first-responders.  The shooting began in an isolated meeting room where the employee was told he was being terminated and continued after he fled from the room and moved throughout the facility.

Sometimes you have no choice but to end the employment relationship.  Sometimes the decision is purely economic and relatively straightforward.  Other times, the decision is more complicated.

Most challenging is when, despite your best efforts to salvage the relationship, one of your employees is just not working out.  She may not be showing up for work on time despite repeated warnings.  Sometimes he may not show up at all and doesn’t call to let you know.  He or she may have taken advantage of the company by falsifying hours while working remotely.  Co-workers and customers are left hanging.  Maybe she continuously ignores safety rules and is endangering herself and others.  Or, maybe he has been engaging in serious misconduct that is detrimental to your organization.  You’re convinced—this employee has to go.

As an employment attorney and HR professional, I have always advised clients “There is no such thing as a routine termination” and “There is no such thing as an emergency termination.”  Does that sound confusing and, possibly, inconsistent?  Let me explain.

“There are no routine terminations.” Terminating a person’s employment can be nerve-wracking and, sometimes, dangerous.  The first few times a manager or an HR professional communicates a termination decision can be especially unsettling and they may spend hours fretting over the decision and planning their approach. But, after a while, managers who have handled several terminations sometimes have the tendency to treat them routinely and may spend very little time reviewing the background and contemplating the best approach to take with an employee.

They become “cut and dried” decisions and the termination message is often handled with clinical detachment.  The process becomes routine.

Conversely, losing a job is never routine for an employee.  Everything is thrown into turmoil—housing, transportation, utilities, healthcare, financial stability, and relationships at work and at home.  Often, a person’s most significant feeling of self-worth comes from his or her position at work.  Sometimes, their work is their entire world. Even when a struggling employee has been coached, disciplined and given warnings, the employee may not accept that he or she has failed at the job.  For many, being terminated is earth-shattering.  Some rebound, recover and move on.  Some do not.

Some turn to alcohol or drugs. Some lash out on social media.  Some turn to violence. Truly, there are no routine terminations.  Every termination should be treated as a significant event with extensive review of the background circumstances and documentation, an analysis of the legal and security risks, and consideration and planning for the safety and well-being of those delivering the message and those on the receiving end.

“There are no emergency terminations.”  The risk of an employment lawsuit arising from a termination is higher than all other types of employment-related actions combined.  Over the last twenty-five years, I have counseled with clients and managers concerning hundreds of terminations.

Despite “Let’s do it now” pressures from irate managers, I cannot think of one situation where it was absolutely necessary to discharge the employee immediately.

But wait.  If the employee is engaged in significant misconduct or posing safety risks, shouldn’t he or she be removed quickly?  Yes, but it does not mean the employee needs to be terminated quickly.  Hasty, spur-of- the-moment terminations often lead to questionable decisions, sloppy execution and elevated emotions.  Even economic terminations should be carefully planned.

Administrative Leave.  For the last several years, I have advocated the use of “Administrative Leave pending review” in lieu of a rushed termination.  Placing an employee on Administrative Leave accomplishes several things:

1. Removes the employee from the workplace and from official interaction with co-employees and customers;
2. Allows a “cooling off” period for emotions (employee, managers, co-workers);
3. Allows time for gathering facts, documentation and witness information;
4. Reduces the “intimidation factor” for witnesses when the subject employee is absent from the workplace;
5. Lets the employee know the company is carefully reviewing his/her employment status or incidents affecting that status;
6. Allows time to obtain the employee’s response to the alleged conduct;
7. Allows time for HR and/or legal review; and
8. Allows time to review safety concerns and put appropriate security measures into effect.

There is also a psychological influence.  Removing the employee from the workplace tends to create a calming effect for all involved. It gives everyone a chance to breathe.  I have found that employees generally respond calmly to being placed on Administrative Leave; especially when the leave is communicated as an opportunity for the company to carefully review employment status and any information pertaining to specific incidents that may have occurred.

Employees like to be told that they will have an opportunity to tell their side of the story.  They expect, and should receive, a thorough and fair review of the circumstances before a termination decision is made.

To Pay or Not to Pay?  Administrative Leave may be paid or unpaid.  Some factors in that decision may include: applicable state and local law, past practice, company policies, company economics, terms of a collective bargaining agreement or employment contract, perceived volatility of the employee, nature of the offense, whether the employee is exempt or non-exempt, length of employment, legal risk, security considerations and the likelihood that the employee will actually be terminated.

In most cases, I recommend that the employee be paid while on administrative leave.

It helps take the immediate financial pressure off the employee and conveys a sense of fairness– that the company has not reached a final decision without doing its due diligence.  Sometimes, anticipating the inevitable, employees use this time for job hunting.  If the employee has another job lined up, the stakes are reduced for all involved.

Advising an employee that he or she is being placed on Administrative Leave can be done in person while the employee is at work or by telephone before or after work.  If the employee works remotely, it can be done by phone or video conference during work hours.  As usual, a witness should be present or conferenced in and announced as being present on the call or video conference.

The employee should be advised that he or she is being placed on “Administrative Leave Pending Investigation” or “Administrative Leave Pending Review of Circumstances” pertaining to employment.

The employee should be instructed not to return to the workplace until notified otherwise and avoid communicating with other employees about the issues being reviewed.  The employee should be advised whether the leave is “with pay” or “without pay” and that someone will contact the employee very soon to hear his or her side of the story.  The employee should be advised and steps should be taken to temporarily suspend access to company computers, systems, email, memory storage and facilities.

Be sure to follow through with the commitment to contact and interview the employee and witnesses identified by the employee before making a final employment decision.

Communicating the Decision.  At the conclusion of the investigation and review, the employee should be notified of the final decision and given instructions for returning to work or for ending employment.  If the decision is made to return the employee to work, the employee should be advised of this by telephone or email and then invited back to discuss (with a witness present) expectations for the future,  and conditions for continuing employment. This discussion can also be held by phone or video conference.

If in person, appropriate security measures should be followed for the employee’s return to the facility and for the return-to-work-meeting.

During this meeting, it is important to warn the employee to avoid any type of actual or perceived retaliation against other employees who may have been involved in the issue and investigation.

If the final decision is to terminate the employee, I advocate communicating the decision by telephone or video conference.  The Joliet shooting is reason enough to consider this option.  The employee is aware of the strong potential for termination and, absent special circumstances, it is not necessary to increase the security risk by inviting the employee back to the facility to be told he or she is being fired.

When there is a union contract that requires personal meetings, union officials may be willing to waive the personal appearance and allow all interviews, hearings and discussions to be conducted by phone or video conference.  If your collective bargaining agreement does not allow for this, consider proposing telephone or video conferencing as an option when you negotiate your renewal contract.

If the decision is made to ask the employee to return to the facility for a termination meeting, situationally-appropriate security steps should be taken.

As with the initial Administrative Leave communication, I have found that employees are generally more accepting of a termination decision when it follows Administrative Leave review.  My clients and I have not experienced any negative repercussions from communicating the final decision by phone.  A witness should be present and introduced so the employee will know there are others listening to the call or participating in a video conference.  I recommend being very careful with the words used to communicate the message.

Avoid using words like “terminating” or “fired.”  They are volatile on their face and have the potential to inflame emotions.

Instead, consider using words like “we are ending your employment,” “we will be proceeding with separation of employment” or “the circumstances leave us no choice but to discontinue your employment.”  Of course, all the normal termination, final pay and benefits continuation information should also be communicated during this conference.

If your company follows a neutral reference policy, it is usually advisable to remind the employee of that policy.  Terminated employees are often concerned with “what are they going to tell people about me?”

Where appropriate, be sure to include a clear instruction that the employee is not authorized to return to any of the company’s facilities.  Arrangements should be made for exchange of employee property and company property via courier or other means. When available, remind the employee of the organization’s employee assistance program resources and any appropriate outplacement assistance.

If the employee has engaged in serious misconduct such as harassment, theft, or acts/threats of violence, it is recommended that you consult with legal counsel for advice about outplacement assistance and your response to reference requests.

There is a fine line between your confidentiality responsibilities to the former employee and your duty to others to avoid promulgating a known risk.

The somber story of the Joliet tragedy should prompt HR and operational leaders to thoroughly evaluate their approach to employee discipline and discharge.  While the use of Administrative Leave is an effective strategy for reducing the risk surrounding employee discipline, it does not eliminate all risk.

Employers should always exercise due diligence and implement adequate security measures to protect themselves and their employees throughout the disciplinary and post-disciplinary process.