E2: Handling Employee Terminations with Dignity

On episode two of the podcast, employment law attorney Kathleen Jennings discusses how to handle one of the most sensitive employee issues in the workplace, termination of employment. Kathleen's brother, Thom Jennings, shares a story about an eventful termination where he was terminated while dressed as Santa Claus. Kathleen also discusses a case where she handled a lawsuit involving an employee who thought they were wrongfully terminated.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in her popular Cover, your Assets Blog, if your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:36):
Right, welcome to the second episode of Cover Your Assets, the companion podcast to the cover Your assets blog. And of course, my name is Thom Jennings and I am here via Zoom with yours and my favorite attorney when it comes to all things employment. Ladies and gentlemen, my sister Kathleen Jennings. How are you, sis?

Kathleen Jennings (01:00):
Doing great, Thom. Thanks for that wonderful introduction.

Thom Jennings (01:04):
So this week's topic is one that is very pertinent and certainly something that employers really need to consider, and your blog is actually called an employment blog. But unfortunately, sometimes when it comes to employment that employment needs to end and the termination of an employee is, I would say probably one of the most difficult things that an employer has to face. There may be situations where it's clear that an employee has to be terminated because of some egregious action, but in many cases it it can be a little bit more nuanced. So today we're gonna talk about some of the things that an employer should do and Kathleen what did you title this topic?

Kathleen Jennings (01:55):
The title of the topic is Handling Employee Terminations with Dignity. The reason that I decided to call it that is because we're talking about human beings and we want to treat them with compassion. If we can't, as you pointed out, there are folks who deserve to be terminated, have done something so egregious that the decision to terminate them is obvious and necessary. But for the most part, when people are terminated, there's been a process, or hopefully there's been a process leading up to that point, the termination's gonna have an impact, obviously on their livelihood, on their family. And so you wanna handle it in the best way possible so that you can cover your assets by making sure that this employee does not become angry or humiliated, which will cause them to potentially contact an attorney, the E E O C, the Department of Labor, or any other outside agency that is then gonna try to get all up in your assets.

Thom Jennings (03:07):
Yeah, and I think the other thing that that's important as well is if you think about it in today's climate, especially, where it's getting more difficult to find employees, much less good employees, that you really can't afford the PR nightmare of people having a bad experience with a particular employer. Cuz just happened to me yesterday, as a matter of fact, I had a friend reach out to me through Facebook and say, I know you used to work at this place, what are your impressions of it? So if I had had a negative experience with them, I certainly would've told them that they probably don't wanna work there.

Kathleen Jennings (03:39):
And that's a great point, Thom, because with social media, it's very easy for applicants or current employees to reach out to former employees and get that kind of information. Back when I first started practicing law, we didn't have to worry about that. You actually had to call somebody up on the phone or meet 'em for coffee or something like that. Now, with Facebook and other social media platforms, it's pretty easy to reach out and, and get unfiltered opinions of someone's former employer. And if that employee is angry or upset or feels like they were mistreated, they're going to communicate that.

Thom Jennings (04:21):
And well, before we get into the, the process in terms of dealing with these more nuanced you know, determination situations, can you maybe go through a typical list of things where it is cut and dried and then the difference between handling a situation, let's say employee stealing versus a performance issue?

Kathleen Jennings (04:42):
Sure. First let's we'll back up and just state in, in states like Georgia, Georgia is one of the few states left where we have what's called employment at will, which means you can terminate an employee at any time for any reason or no reason at all. That's under state law. There are other states such as New York, that have exceptions to the at will employment law. You cannot terminate people for in, in retaliation for filing a worker's comp claim or something like that. However, even when the state allows you to terminate someone for any reason or no reason, you have to be mindful of federal law. And if your workplace is covered by Title seven, which means you have 15 or more employees, then if you fire someone for a discriminatory reason, you can get hit with an E E O C charge and a lawsuit potentially.

Kathleen Jennings (05:43):
Also, if you terminate someone for reporting a safety issue, OSHA can come after you because that's illegal. Or if you fire somebody for reporting a wage in hour issue the, the Department of Labor can come after you for that. So while it may seem like it's a great thing that you can terminate an at will employee, you have to be mindful that there are limitations on that. In addition, you wanna be mindful of how the termination comes about because that is going to dictate how the employee takes the next steps after the termination. So what you wanna do in a case of perhaps a performance issue, you wanna have the paper trail, of course the attorney's gonna ask for the paper trail. And if someone, if a client calls me up and says, I need to terminate Bubba because this is just a poor performer, my first question is gonna be, well, is Bubba gonna see that coming?

Kathleen Jennings (06:47):
Does Bubba know that termination is imminent? And he would know termination is imminent if he's been progressively disciplined, he's been counseled and perhaps the last step leading up to that he's been told any more further infractions or further problems will result in your termination. So he's, he, he should know it's coming unless he's in denial. And that happens, there are some infractions or some violations that are so egregious, such as an an employee assaulting another employee in the workplace, sexual harassment or theft of company property that will result in immediate termination and they should see it coming because they did something really bad. But that's not something that necessarily requires progressive discipline.

Thom Jennings (07:44):
So in, in a case that you mentioned, we'll say, I think sexual harassment is one we can, we can maybe dig a little bit deeper into what you know, does it, is the employer obligated on some level to present evidence of the sexual harassment? I mean, in a case like an assault, I would assume that that's pretty cut and dried. You know, you've got maybe video or injuries or witnesses and things like that in a he said, she said situation, that must be very delicate for you to deal with because if the employer just, you could say, oh, well the employer's just trying to get Ari rid of somebody, maybe they didn't see it coming. Cuz this is really kind of the theme here. We're saying, Hey, your employees should know it's, it's happening. But if there's maybe an off-color statement made or something that's done in the case of a sexual harassment, but it's only between two people and there's no other evidence, could that be a real problem as well?

Kathleen Jennings (08:38):
Well, Thom, I think that would actually be a great topic for our future podcast because that's gonna come down to how you investigate the complaint of sexual harassment. One, information you gain from that investigation and what conclusions you reach as a result of the investigation. So I think that that's something that we could cover at a later date, but obviously there needs to be an investigation and if the conclusion of the investigation is that the person who is accused of sexual harassment is needs to be terminated, then that needs to be communicated to the person the other. I think the other important thing to remember when you terminate someone is tell 'em the truth. Tell 'em the truth about why they're being terminated. Because if you give them a reason that's not the truth or a reason that's false, that also can leg the groundwork for a potential discrimination claim. Because if that's not the real reason, then the employee or their attorney will say, well, this wasn't the real reason for termination. The real reason must have been discrimination or retaliation or something unlawful. So be honest.

Thom Jennings (09:55):
So, you know, in a situ, I I, I know this situation has happened to friends and, and we have places that I've worked at where everybody talks about the paper trail. You wanna make sure that you cover yourself, you have a certain amount of verbal warnings and written warnings and all that kind of stuff. But when that process begins, I think sometimes that an employee can feel like they're being targeted and that the employer is beginning the process of trying to terminate them. Is there advice that you would give to an employer in those early stages where they are beginning to address performance issues that maybe doesn't turn that whole thing into something that lacks dignity?

Kathleen Jennings (10:34):
My advice would be, first of all, to be consistent with among all of your employees. If your process is initially we have verbal counseling, which will be documented and then have specific steps that you go through that lead up to termination. Don't target just one employee that you've gotten tired of. Make sure you use this process for all employees that have similar performance issues.

Thom Jennings (11:03):
And is there, is there any benefit or problem with I know I've worked for employers that have that email that is sent to the entire workforce that is really meant to address two or three people. You know, for instance, if you have a couple employees that are consistently late and then the employer sends out an email that says, Hey, if you're, if you keep being late, you're gonna be subject to progressive discipline. Is that sub, is that, does that work as far as documentation or is that just something that maybe you would say is probably not a great idea?

Kathleen Jennings (11:36):
I personally don't find those types of emails productive from both ends, either from the employer end or from an employee end. The better approach would be to address the issues individually with the people that have the performance issues. Or in this case, if someone's late constantly, you need to meet with that employee. You need to document the lateness and you need to let the employee know further incidents of being late within X period, which should be consistent with the company's policy are gonna result into, result in further discipline up to an including discharge. And when you do this documentation, my other very strong advice is make sure the employee signs it. Because what we find out is employees will tell you, if I didn't sign it, it didn't happen.

Thom Jennings (12:35):
And, and that's, I mean, to me, I think that's a very common thing. I know that one employer that I worked for, there was an employee that was written up and they just said, well, I'm not gonna sign it. And then they, we actually, I think we had a process where I believe I was brought in to sign something to state that they were given this particular document just to prove that the exchange even happened. Is that something that's, I mean, that you kind of need to do. And I, and I think there's a gray area there too, because if I'm an employee who's not involved in the discipline process, and you kind of drag me in my, maybe this coworker's my friend, and now I'm, I have to sign this document about their performance. I mean that actually, I remember it being a very uncomfortable situation for me. But again, I don't know how you would handle that unless maybe you have the HR person and the supervisor, they're both signing that they had presented it.

Kathleen Jennings (13:24):
I agree with you, Thom, that's not ideal to drag in a coworker who's not involved in the situation. The better approach would be to have in any of these types of meetings, two people anyway, perhaps someone from hr, perhaps the supervisor. And if the employee refuses to sign, then they can document employee refuse to sign and they sign their names to it also. But that way you have two witnesses to that incident, and you should generally do that with any of these kinds of personnel meetings, especially that discuss performance, potential discipline and termination.

Thom Jennings (14:03):
And does email suffice in terms of a warning? I mean, a lot of people can receive emails and say that they never receive them. I mean, is that, is that an issue with employers?

Kathleen Jennings (14:14):
It could be. Again, it gets back to, yeah, you have the documentation, but if you don't have some kind of verification in the form of an employee signature that they received that email, some employees are gonna say, like you said, I never saw it. I was never given this warning or something to that effect. Again, if, if they don't sign it, it didn't happen. And so that's why it's very important to make sure that you get the employee to sign and acknowledge the steps of the written discipline process.

Thom Jennings (14:50):
All right. And let's, let's close up with a case study. And this is a personal one. This is a situation that happened to me a few years back and I was working for an employer and it was the Friday before Christmas and I was called into the office. I was actually I was actually in a Santa Claus suit. I was working for my employer and I, we had, we, we'd had, I was overseeing a daycare as part of my general duties, and I was playing Santa and the Friday before.

Kathleen Jennings (15:15):
I find that hard to believe Thom <laugh>. I mean, I guess people can't see you in the podcast, but if they see a picture of you, I think they would understand Yes. Why you would've been in a Santa suit.

Thom Jennings (15:26):
I, I am typecast. I have a, I have a white beard and a big personality and I also, I also have a lot of elves working for me. So those are the three things. But no, I don't have any elves working for me. But if I did not yet, if I did, you would be my attorney to represent me in case I had some issues with the elves. But,

Kathleen Jennings (15:42):
And I appreciate that

Thom Jennings (15:44):
<Laugh>. So the situation was, it was a Friday before Christmas. And I say that because again, we talk about, you know, terminating an employee with dignity. And I think that terminating an employee near the holidays is, is a consideration. I think employers should, should at least look at that and or you know, if they've just experienced a tragedy, like a death in a family or something like that. But anyhow I was called in, I was given this written documentation. I don't need to go through the, the particulars of it, but as we were discussing this and preparing for this particular episode, I think the conclusion we draw is that the first thing you asked me was, did you see this coming? And in all honesty, I didn't see this coming from a mile away. And even the list of grievances were, were all very minuscule and none of which had been addressed with me before. None. And that I was asked to sign a document, I didn't sign it. And he was literally the only person in the room. It was just me and him. And eventually this wound up leading to legal action on my end. And I can't really say,

Kathleen Jennings (16:43):
Well, how t to tell us. Thom, how did you feel about the way that was handled? How did it make you feel?

Thom Jennings (16:49):
I the same way I feel now. <Laugh> obviously very, I mean, I'd say you could probably still hear my voice. I mean, and who fires somebody the Friday before Christmas, first and foremost, but

Kathleen Jennings (17:00):
In a Santa

Thom Jennings (17:01):
Suit. In a Santa suit,

Kathleen Jennings (17:02):
Like who fires Santa? I

Thom Jennings (17:03):
Know the visual

Kathleen Jennings (17:04):
Friday before Christmas.

Thom Jennings (17:05):
My goodness. Santa

Kathleen Jennings (17:06):
Yeah, it's like Santa. Yeah, that's,

Thom Jennings (17:08):
Yeah. And that, that year no children received any Christmas presents because I had been terminated right before Christmas. But

Kathleen Jennings (17:14):
That's, that's just not even right.

Thom Jennings (17:16):
But you, it, you know, but again, you know, it, there was, there were so many of those situations so many of those, those situations that came up. Again, there wasn't that paper trail and I was in a probationary period, which was the 90 day probationary period. So maybe you can address a little bit of that, because I think that when you, when you're initially with an employer, and this was in New York State, you know, they say, yeah, you know, 90 days, if we, if we think you're lousy, we're just gonna get rid of you be just because. And but, but yeah, eventually it, it led to some legal action. I, I'm, I, there was a settlement. I can't say what the settlement was because you know, in most settlements they say, well, we'll settle, but you can't really say what we've, what we've settled.

Thom Jennings (17:54):
And in, in many occasions they'll say, we won't have been any wrongdoing, but we might do something for you. So we'll just, we'll put it at that. But I said, ultimately, I think it comes back to a lot of that could have been avoided. So what would you, what would've been your recommendation if, say my employer had come to me and said, look, you know, Santa Claus is not doing a great job here. We, he's in his probationary period. We just, he's just not a good fit. We're we need to, we need to get him out of here. What would you tell him?

Kathleen Jennings (18:24):
Well, first of all, I would hope never to be involved in the termination of Santa Claus because that would probably impact my future Christmas presence. So putting that aside, if we're talking about perhaps a guy in a Santa suit will make that the hypothetical. I guess my first question would be, as we talked about, you know, does this employee know it's coming now in a lot of places you have a 90 day probationary period and employers feel like, well, yeah, we can terminate someone during that 90 day probationary period without really giving a reason because they're on probation, which I guess theoretically is true, but in your case, you don't see this termination coming and there were legal issues that caused you to go to, I guess, a federal agency, wasn't it?

Thom Jennings (19:26):
It was a state. Yeah. I mean, I guess the part that, the part the blank that we have to fill in is that there were some labor violations that I had reported. So, but, and then you know, that that could easily be looked at as retaliation. Now, in my opinion, I think there was some retaliation there and I, I, whatever the case, but the way it was handled, I was able to, in, initially what I did is I went to the, the state because it was an EM employment issue, a wage an hour thing. But I could have just as easily applied or, or filed a complaint with the E E O C because if a, it was, if it was a retaliation for a co complaint about a labor violation, I believe that I could have gone to that agency as well.

Kathleen Jennings (20:12):
Well, if you hadn't made a complaint about a wage and hour issue, you could have gone to either the state agency, which you did, or the Federal Department of Labor. And being a probationary employee does not mean that the employer can go ahead and terminate you anyway because you're a probationary employee. Once you make that kind of complaint, you are protected from retaliation. And then the way that the employee went about terminating you, really, it proves the retaliation more than anything else. Because if there truly had been performance issues all along, and you had been written up all along and you had been put through the progressive discipline process, then it would've been easier for the employer to say, well, we terminated Thom because of performance, and here's, here's the trail of paper, here's where we discussed the issues, here's where we communicated the potential consequences, but doing it the way they did, where they just bring you in one day without notice and say, oh, by the way, you're doing a crappy job goodbye. That makes it look like, well, maybe that's not the real reason they're letting Santa go. Maybe the real reason is they're a little upset that he complained about some wage and hour violations. And it sounds like you had enough of a case to, to perhaps get what we'll call a confidential settlement.

Thom Jennings (21:45):
Yeah, and and in all honesty, I mean, I the reason I took the confidential settlement was because I just didn't wanna drag the process out. But certainly it could have been a situation where the employer, if it was somebody that was willing to dig their heels in and really make a huger issue out of it, it could have cost them a lot of money as opposed to a confidential amount of money, which may or may not have been substantial. So yeah, and, and I agree it, it's, I think that if there was a paper trail that said, okay, this is, you've done this wrong, this needs to improve, and even if it is during the probationary period, then obviously they would've said, oh, well now you're saying it's retaliation, but yet you had all these other performance issues, they would've had exactly much better position to say that that's what it was, as opposed to, you know, a bunch of things that were very minor. And even if you added them all up, I think a person with common sense would look at that and go, oh, this, this is why you terminated them. Well, that doesn't look great, you know, <laugh>. Right,

Kathleen Jennings (22:44):
Exactly. And, and probably the timing didn't help either. How soon after you complained did they terminate you?

Thom Jennings (22:53):
Actually it was within a week. Yeah.

Kathleen Jennings (22:56):
Oh yeah, yeah, yeah. It

Thom Jennings (22:58):
Was within a week.

Kathleen Jennings (22:59):
Yeah. That's nice. So

Thom Jennings (23:00):
Yeah, it was it was a, it was, yeah,

Kathleen Jennings (23:02):
You had a weird, you had a good claim,

Thom Jennings (23:04):
<Laugh>. I did. I did. And it, again, it was very sloppy. And I, and I think even going back to some of the earlier things that we were discussing in terms of, you know, PR and whatnot, I mean, to terminate an employee on the Friday before Christmas, that certainly would reverberate through the organization on some level because I mean, you just, I, I just don't think it's, I just think it's bad for him. I mean, it's just, you just don't do something like that. And it was clear he was very the term that my son uses often is butt hurt. He was very butt hurt at the at the, the complaint that I made. And I only made it, and we'll conclude on this. The only reason that I filed the complaint was because an employee came to me and threatened to sue me personally if we continued the practice within the agency. So I, I was literally caught between a rock and a hard place. So,

Kathleen Jennings (23:58):
Or between a hurt butt and another employee. Well, there was a, there probably was, but

Thom Jennings (24:05):
Hurt too. A lot, a lot of, a lot of buds being, lot of buds situation.

Kathleen Jennings (24:08):
So <laugh>, and that's why we're always talking about covering your assets.

Thom Jennings (24:12):
Covering your assets, cuz you know, your, if your asset is covered, your butt won't be hurt. Maybe that's the exactly. Maybe that's the, I think that's super arching theme for the Cover Your Assets podcast, <laugh>.

Kathleen Jennings (24:22):
Certainly for today. It is, certainly

Thom Jennings (24:24):
For today. Well, as always, it is a pleasure. I think this topic, again, is something that's very pertinent to a lot of people and it's something we can revisit. And as you mentioned, you kind of tease that, that whole issue of sexual harassment and employee terminations and things like that, that may be a great topic as well. But how about some contact information for people to either send us topic ideas or further questions to, to follow up on this particular episode.

Kathleen Jennings (24:52):
You can go to the blog, cover your assets on WordPress, or you can visit me on our firm's website. My email is kj j at Whim Law w im l a w.com. And Thom, let's put in a plug, because your buttery voice is not only on this podcast, but I understand you have a solo podcast. Why don't you tell our listeners about that?

Thom Jennings (25:19):
Well, that is indeed called the Bagel Logic Podcast with and I'm, my moniker there is Papa Thom. But yes, that's a, that's a kind of a companion podcast. And you will be a guest on that podcast at some point talking. I hope so. Talking about how wonderful it is to be my sister. Well, if you could see the Zoom right now, folks, the look I just got from my sister, but she always tells me I'm, I'm her favorite brother, you know, and I'm, cuz I'm, you're

Kathleen Jennings (25:46):
My favorite brother. Well, yeah,

Thom Jennings (25:48):
<Laugh>. All right. Well, until next week everybody, thank you so much for taking the time to listen to cover your Assets. My name is Thom Jennings, that is my lovely sister, the attorney extraordinaire, Kathleen Jennings, and we will see you next week.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.