Firing an employee is never easy; however, added complications are involved when doing so remotely.
- Having to fire an employee remotely adds complexity to the process.
- Before conducting the actual termination, you should have a termination letter prepared, designating who will do the actual speaking, when the firing occurs, and what you should say to others on your team after it is over.
- When firing a remote employee, simulate how the process would be done in person.
- This article is for small business owners and HR professional who want information on how to properly terminate a remote employee.
Terminating employees remotely is becoming more common as the number of remote workers increases. Like any termination, the process isn't easy. To protect your business from any legal backlash, it is critical that as a business owner you fully think through the process and understand the best practices for terminating a remote employee.
The process of terminating a remote employee involves three parts: preparation, the actual termination, and the post-firing follow-up.
How to prepare for a remote employee termination
Once you have decided to terminate a remote worker, it is critical to line things up before you conduct the actual firing.
One of the first steps is to work with your IT department to schedule a day and time to shut down the employee's online access to any online programs they have access to, such as their email account and Office 365 or G Suite. You also want to arrange to have their profile removed from the website and any other official ties between your company and the employee cut as soon as the termination occurs.
Then there are major decisions for you. The challenge is that there are no right answers. Those issues include the following.
Who will be present for the actual firing?
Appointing who will be the spokesperson in the remote meeting and who else will be present is another issue you need to resolve before moving forward. Usually, the most appropriate spokesperson is the employee's direct supervisor.
There should also be a representative from human resources and perhaps a lawyer. Having more than one person present at the termination meeting sends the message that the decision was a collective one. It also ensures other witnesses were present, who can attest to how the actual termination occurred.
How to create the official termination letter
The termination letter is an important document for three reasons. One, its tone and content reinforce the message that the employment relationship is over. Two, it can become evidence in litigation. And, three, the terminated employee can post excerpts, out of context, on social networks, damaging your company's reputation.
Your letter should explicitly state that the employee is being terminated, and it should outline any compensation or benefits they may receive. We've created examples of termination letters you can use as a template.
How the termination letter should be worded
Stating a specific cause, such as absenteeism, can lead to defensiveness by the employee and public statements about unfairness.
One strategy that is authentic yet diplomatic is to state something to the effect of "Terminating employment is in the best interest of the business." It is succinct, and it spares both you and the employee from engaging in a drawn-out and what can be, in some cases, exasperating conversation, which may spread to your other employees or social media.
For legal and logistical reasons, there must be a set script, along with stock responses to what the employee might say.
The script must state explicitly that the decision is irreversible. The easiest way to handle the presentation is to rehearse the content of the termination letter, but present it in a conversational way to the employee.
What to say internally and, if needed, externally
Depending on who the individual is and their role in your company, you may need to issue an internal statement to your team. Avoid getting into specifics about why the employee was let go.
Simply let your staff know they are no longer working for you and that you are appreciative of the contributions they made to the company. For those who worked closely with the departed employee, you may want to schedule follow-up virtual meetings between the direct manager and the subordinates.
Key takeaway: Taking the proper steps to prepare for a remote termination is critical. You should have all of your paperwork in order, clearly assign whom the spokesperson will be, and prepare a script that details what will be said word for word.
How to conduct the remote termination
Terminating employment with an individual calls for empathy, even if your company has "good cause" for doing so. Unfortunately, breaking the news via video conference presents additional hurdles. In person, thanks to what neuroscientists call mirror neurons, humans communicate emotion. As the saying goes, you can feel the sadness/tension/surprise in the room.
Because the news is being delivered remotely, those facilitating the termination have to simulate what would happen in person. Those conducting the termination should put in place all of the "signaling systems" to create a serious, yet caring and respectful tone for the conversation. These signaling systems include proper lighting for each speaker, professional attire, neutral body language, the use of hand gestures, appropriate facial expressions, and a slow pace of conversation. The latter is a must, since for many, being fired comes as a great shock.
The meeting should begin with the spokesperson thanking the employee for being at the meeting. Then the spokesperson indicates the company has found it necessary to terminate the employment of the individual. That decision, the spokesperson emphasizes through tone, has already been made and is irreversible.
The script should cover all of the items included in the termination letter. The spokesperson then informs the employee that a letter is also being mailed following the meeting. If the employee asks questions or raises objections, only preapproved responses should be read to the employee. Do not stray from the termination letter that was drafted.
Once the employee accepts the decision, then the matter of severance can be introduced.
Examples of scripts
There are several instances that can lead to termination, and the circumstances will impact the script.
Termination for cause
A termination for cause script should outline the specific cause leading to termination. This will be tied to the employee's original contract, which specifies what must or must not be done within the scope of the job. In this instance, the script should identify how the contract was violated by the employee.
Termination at will
A termination-at-will script does not require that you cite a specific cause. It may be prudent to explain the reasoning for termination, but this is fundamentally different from highlighting a breach of contract. It is also important to note that termination at will is only legal in specific states. States that do not have at-will employment can create legal barriers to such a termination, and those barriers must be addressed in the script.
Materials you will need
To carry out a successful remote termination that grants due respect to all parties, some materials will be necessary, including:
COBRA packets. Employees who have insurance are entitled to continue it after termination, and COBRA manages that insurance.
Company property checklist. It is important to note what belongs to the company and what belongs to the individual. The checklist will prevent confusion and resolve disputes.
Severance pay. Not all terminations merit severance pay, but when it is merited, it should be ready to process immediately, or following the terms of the employment contract.
- Formal acknowledgement of termination. Typically, an employee will sign a form acknowledging the end of employment and the fulfillment of all related contracts. When termination occurs remotely, a digital form of this acknowledgment is necessary.
Key takeaway: A remote firing doesn't allow for the emotion that can be expressed during an in-person firing. As much as possible, use hand gestures and facial expressions that convey compassion when firing an employee remotely.
How to follow up after the remote termination
Once the termination meeting has concluded, use the following checklist to verify the equipment has been returned, access to company resources has been revoked, and that your company is in a secure position in the event a disgruntled employee chooses to retaliate against your business:
- Funds due the former employer have been paid, and the termination letter has been mailed.
- All electronic connections have been disabled.
- All company equipment on loan to the employee has been returned.
- The employee's profile has been removed from the website and any company documents.
- You've distributed an internal statement and/or conducted any virtual meetings to notify other employees of the termination.
- You've provided contact info for human resources representatives so they can respond to any questions and concerns your remaining employees have.
- You've revoked access to your business premises (keys, security system access codes, etc.) as well as all software (including social media accounts, if the employee had login access to your company's social media accounts) the employee had access to.
- You continue to monitor any public comments made by the former employee, and you've crafted a response for release to the media and to post on social networks in the event you receive negative publicity related to the termination of the employee.
Key takeaway: You should have a checklist of items you complete before, during and after the termination of an employee. Your list should include making sure all equipment is returned, online access to programs and services has been cut off, and any severance or other compensation is appropriately paid out.
Is the firing necessary?
Termination, especially in a small business, can unravel an organization. Naturally, many of your employee will wonder, are we next?
Additionally, termination involves the law, which is open to interpretation. If the employee pursues action to object to the termination, your documentation, even if it's comprehensive, may not be adequate to prevent a verdict for unjust termination.
There is also the matter of your unemployment insurance costs. Unemployment authorities may determine, even if there is documentation, that there was no cause for firing. That will increase what you pay for unemployment insurance.
Also, you might have to hire a replacement. The Society for Human Resource Management calculates it takes 42 days to fill a position, at the cost of $4,129, with an additional $1,286 for training.
However, all that may be irrelevant. You might have already unsuccessfully used informal conversations, write-ups, including the progressive discipline process, and performance appraisals to attempt to change the employee's conduct. Further, some activities, such as sexual harassment, embezzlement and selling drugs in the workplace demand firing.
Key takeaway: Firing can be costly in many ways. Before jumping straight to termination, make sure you have thought through the ramifications.
What human resources systems should your business have in place?
Labor can be your biggest expense, accounting for 70% of your costs. Therefore, you must have human resources systems in place for managing your workforce.
After the systems come the policies and procedures. The key ones associated with discipline and termination include:
- The hiring letter specifies the job is at will. Employees, with the exception of those in Montana, are aware that "at will" means they can be terminated for no cause at any time with no warning.
- Onboarding requires signing agreements that outline how disputes will be handled. Mandatory confidential arbitration could be required, and the internal grievance process should be spelled out.
Have an employee handbook that states all company policies and procedures. That handbook could be a major piece of evidence for the company should litigation occur after the firing. The handbook should state that the business has the right to change company policy and procedures at any time.
- Establish channels for communication among immediate supervisors, human resources, public relations and in-house/outside legal. They should all be in the loop about a developing employee problem.
Key takeaway: Having the appropriate human resources systems and documents in place, such as hiring letters and employee handbooks, at the start of employment, can help your business avoid potential legal situations resulting from terminating an employee.
What legal research is necessary?
Theoretically, with at-will employees, a firing can occur at any time. As usual, the employee didn't submit the report within the specified deadline. The whole team is put on hold. The supervisor is frustrated. Why not just pull the plug immediately?
That is not recommended. Firing is a process with many moving parts. For it to be done right, all those parts must work together smoothly. It is important to work with your human resources and legal team to ensure you are following the proper steps and considering all of the potential ramifications. If not, you could be sued for wrongful termination.
Here is a checklist of legalities:
- Are there state laws about how the termination must be conducted? For example, your state's law might require prior warning or severance pay.
- Are there questions about whether the employee has any special protections that must be factored in? One could be a disability that is later claimed in litigation not to have been accommodated.
- Do you have all of the conduct and attempts at remediation documented?
- What compensation must be paid to the employee? Will they be eligible for unemployment benefits?
- Is there a written, oral or implied job-security employment contract? Beware of the last two. Suppose a supervisor tells employees, without the approval of the company, that they have a job as long as they arrive on time. Or, the wording about job security is wide open to interpretation in the employee manual. It may surprise you, but the courts can interpret both those in favor of the terminated.
- Is there membership in a union?
- What is your state's particular public policy protections? Those can include prohibiting firing based on discrimination, whistleblowing, filing workers' compensation claim or refusing to engage in the company's request to perform an illegal activity.
- Is your state one of the 11 requiring a Covenant of Good Faith? That is, the firing decision must demonstrate just cause, not malice. Can the fired prove the supervisor "had it out for them?"
- The National Labor Relations Act of 1935 bans firings because employees participated in concerted (more than one) activities to improve working conditions. As the verdict for the fired worker in NLRB v. Chipotle Services showed, that applies to use of social networks such as Twitter.
- New York, California, Colorado, North Dakota and Louisiana passed laws barring firing for what employees do off duty, if legal. Some situations are clear-cut; others can be tricky.
Making sure you have factored all of this in is critical to ensuring you on strong legal footing when terminating an employee, whether it is being conducted remotely or in-person.
Key takeaway: Firing an employee should never be done in haste. There are myriad legal issues to consider. Make sure you have accounted for them before moving forward with any termination.