- Relevant Laws and Executive Orders
- Relevant Case Law
- Legal Concepts/Definitions Relevant to Workplace Planning and Employment
- Recruiting Candidates
- The Selection Process
- Background Checks
- Employment: Extending the Offer
- Negotiating the Offer of Employment
- Termination: The End of the Employment Life Cycle...or Is It?
- Exit Interviews
- Severance Packages
- Affirmative Action Plans
- Compensation and Benefits
- Documentation Strategies for HR Professionals
- Chapter Summary
- Apply Your Knowledge
Termination: The End of the Employment Life Cycle…or Is It?
Terminations reside at the other end of the spectrum of the employment life cycle. They are often not given the degree of attention they deserve and require. Knowing how to effectively facilitate the process of employee terminations—whether voluntary or involuntary—is just as critical as knowing how to effectively facilitate the process of bringing employees into the organization. Whatever the reason or cause, an employee’s exit from the organization should be just as positive and respectful as the onboarding process for that employee’s replacement will be.
Involuntary terminations—regardless of the specific reasons for the terminations—are challenging. There are several types of involuntary terminations.
Most HR professionals—at one time or another in their careers—will participate in the process of laying off employees. No matter what you call them—downsizing, rightsizing, RIFs, or any of the other monikers in use these days—layoffs are never easy. The decision to lay off one or more employees should not be made lightly, and the manner in which the layoff is conducted is absolutely critical.
Determining Who Will Be Laid Off
Layoffs are handled differently in different organizations and under different conditions. When the employment relationship is governed by a collective bargaining agreement, the terms and conditions governing who will be selected for layoff will likely be clearly spelled out and are usually heavily weighted toward seniority (“last in, first out,” or LIFO). In the absence of a collective bargaining agreement, decisions relative to who will stay and who will go may be based less on seniority and more on skills, past performance, job function, or perceived potential.
The Role of HR in the Layoff Process
HR’s role in the layoff process can vary greatly from organization to organization. Often, HR professionals help prepare for the layoff in an administrative (transactional or “paperwork”) capacity. This may include calculating severance pay or vacation entitlements or preparing COBRA paperwork. In addition, HR is often a primary source within the organization for information about outplacement services, in the event those services are being provided to assist employees as they transition out of the organization and as they begin the process of seeking new employment. (Outplacement support consists of resources and assistance provided to employees who are being involuntarily terminated for reasons unrelated to cause. The purpose of this assistance is to empower departing employees to find new employment. This could include resume preparation, mock interviewing, networking assistance, coaching, and more.)
HR’s role often extends beyond administrative responsibilities such as these. Sometimes HR professionals participate in meetings that are held with employees who will be terminated as part of the layoff. These meetings must be conducted with respect, consideration, empathy, integrity, and alacrity. This is a difficult situation for the employees who are leaving the organization as well as for the employees who are staying. It is also a difficult process for the managers and HR professionals who are involved in the process.
Other Involuntary Terminations
Many, if not most, employers have the legal right to terminate an employee at any time, for any lawful reason—or for no reason at all. In reality, however, using employment-at-will principles in a “willy-nilly” manner can seriously damage morale, diminish loyalty, increase turnover, and damage the employer’s reputation in the labor market. It could also increase the likelihood of litigation.
Most of the time, the decision to terminate an employee is well thought out, carefully scrutinized, and based on legitimate performance-related issues. It should also be made only after whatever progressive discipline process is in place within the organization has been followed—and followed with the expectation, hope, and intention of empowering employees to bring about a positive outcome, rather than with the sole intention of creating a paper trail that will let you terminate an employee with a greater degree of comfort. ( Although that is one possible outcome, it shouldn’t be the initial objective.)
Managers—HR’s clients—make termination decisions. Sometimes (and ideally) they make these decisions in conjunction with HR. At other times, they make these decisions independently and bring HR into the process only when it comes time to execute the decision. In either scenario, HR can add value to this process. Sometimes, when it appropriate to do so, HR can suggest alternative approaches. HR can also ensure that the termination has been made in accordance with the organization’s policies and practices and that it is nondiscriminatory. At times, HR can also point out information that has been unintentionally overlooked, such as consistently positive performance appraisals in the file of a person who is being terminated for poor performance. In short, HR can provide a “second set of eyes” and can help managers think through this all-important business decision. Perhaps most importantly, HR can remind clients that counsel must be consulted before any layoff is implemented.
There are a number of reasons why an employee might decide to voluntarily terminate her employment with the organization. Among these could be the following:
- Acceptance of employment elsewhere (“other” or “different” employment, not necessarily “better” employment)
- Return to school
- Retirement, whether at an expected point in time, or earlier
- Avoidance of an anticipated involuntary termination
- Dissatisfaction with the current employer, manager, or job
- Health- or disability-related reasons
- Enrollment in the military
- Personal reasons (birth or adoption of a child, illness of a family member)
Constructive discharge does not fit neatly into either “voluntary” or “involuntary” terminations. It may, however, constitute wrongful discharge. (Wrongful termination happens when an employer discharges or dismisses an employee in violation of federal, state, or local laws or statutes. Wrongful termination/discharge is a tort doctrine that speaks to the employer having ended the employment relationship for wrongful reasons. One possible basis for wrongful termination could exist if an employee was terminated in violation of an individual employment contract. Others could apply as well and would vary from state to state. Wrongful termination can be related to discrimination, contract considerations, or other common law/tort violations.)
An employee who alleges constructive discharge asserts that she was subjected to such intolerable working conditions that remaining employed with the organization had become an impossibility. Essentially, the employee is saying that she was forced to quit. Claiming constructive discharge, however, does not make it so—instead, this must be proven.