HR Basics, Legal Issues

Who Should Sit in When You Have to Do a Termination?

Photo illustration by istockphoto.com

By Howard Mavity

Should HR sit in on a termination?

A senior human resources professional recently posed this good question on a LinkedIn forum. As with many good questions, the answer is that “it depends on the facts.

Here are a few initial observations before we get to the central question:

  • A process should be in place so that HR is aware of the termination.
  • Processes should also be in place to ensure that the supervisor’s boss or someone else in management has to approve a termination; even routine. Even in large companies, we learn of terminations carried out without oversight by frontline or site supervision.
  • Train “everyone who fires” to recognize that small percentage of potential “problem” discharges, and to contact HR.
  • Even better, build a culture where supervisors contact HR on a regular basis and not only when terminating an employee.

Factors when deciding who should sit in

If the above steps are followed, hopefully HR or additional management is already involved in problem discharges. I consider the following factors in whether it is wise to involve HR in the termination meeting.

  • How strong are the “people” and supervisory skills of the person handling the termination? Lawsuits sometimes occur because of the way a termination meeting is handled. Even if the termination presents no meaningful legal risk, coworkers and potential hires will hear about shabby treatment at termination.
  • Who will explain benefits, confidentiality and other “housekeeping” matters?
  • How high up is the employee and are there complex confidentiality, non-competition or customer issues?
  • Will the terminating supervisor keep adequate notes and complete forms?
  • What is the most professional and “decent” way to handle the meeting? Even when the soon-to-be ex employee (hopefully working for a competitor soon) is a truly sorry human being, nothing is gained by treating the person badly at discharge.

Why does HR always sit in?

Notwithstanding these considerations, I prefer someone to always sit in on a termination, and often that person is from HR. Why?

  1. To monitor personnel actions and to strive for consistent corporate behavior, or document when deviations are necessary.
  2. Regardless of the routine nature of a termination, lawyers hate inheriting “he said – she said” situations. I like a witness to what he terminating manager testifies.
  3. The HR professional may quite frankly be good at handling discharges, although I am not sure that they will revel in the role of everyone’s favorite executioner.
  4. Employers seldom get much from exit interviews, or even persuade departing employees to complete an exit interview, which is a shame. Employers often learn of theft, drug issues, discrimination and harassment occurring at the site when a teed off soon-to-be-former employee lets loose in the exit interview. Remember the Memorex commercial where the sound is blowing the listener back into his seat? Of course, sadly, that analogy presupposes that you remember cassette tapes. Maybe such information flows better with HR present, or with an additional manager present.
  5. Sometimes an upper level manager or HR member is required to not–so-subtly send a message, either positive or negative.
  6. To handle the increasingly vital effort to protect data from walking out the door.
  7. To better train supervisors who may seldom terminate an employee and probably have not received much training on how to do so.
  8.  Finally, if a termination is for rule breaking, attitude, or performance, is a termination ever truly “routine?”

As a parting recommendation, don’t terminate someone “virtually” as occurred in the outstanding movie, Up In the Air, even if you are as nice as Anna Kendrick (see this clip).

https://www.youtube.com/watch?v=5EFJS1s4BsU

One of these days, I am going to teach an MBA-level course using Up In the Air and Office Space as my source material!

What do you think?

This was originally published on Fisher & Phillips’ Workplace Safety and Health Law Blog.

Howard Mavity is a senior partner in the Atlanta office of the law firm Fisher & Phillips. He co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group, and has provided counsel for over 200 occasions of union activity, guided unionized companies. In addition, he has managed almost 400 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. Contact him at hmavity@laborlawyers.com .
  • The HR Gypsy

    I have always felt that if HR sits in on a termination, they lose their 3rd party neutral role. It will appear to an employee that HR is “on management’s side” and then not share what they otherwise might share when HR goes in after the termination to go over benefits and answer any other questions. HR shouldn’t apologize and appear NOT to be supporting management’s decision, but answering questions and dealing with potential emotion from a more neutral perspective has proven to be more effective, in my experience.

    • kachina2

      HR is on management’s side. They exist primarily as a management support function, regardless of their job descriptions and any policies and procedures that suggest otherwise. Neutrality would require an outside party- not a bad idea considering an impartial witness could be valuable to any wronged party who elected to dispute the matter.