Terminating an Employee: Don’t Make this Mistake

Posted by Kenneth N. Winkler on

There were once again NFL head coach terminations on “Black Monday” – the Monday following the end of the regular professional football season.  It is common for NFL teams to fire under-performing coaches after the end of the regular season and this year is no different. This news cycle, however, brings awareness to the importance of the termination process.

Avoid the Blindside
The head coaches let go on this year’s day of reckoning include Chicago Bears Head Coach Matt Nagey; Miami Dolphins Head Coach Brian Flores; and Minnesota Vikings Head Coach Mike Zimmer.

Nagey and Zimmer’s terminations were expected, but the Dolphins decision to terminate Coach Flores was somewhat surprising.  The Dolphins won eight of their last 9 games and the team seemed to be moving in the right direction, despite not making the playoffs. 

As I reflect on Brian Flores’ termination, I wonder whether he saw it coming.  There is a particular reason why I ask this question as an employment attorney: Blindsiding employees is the most common mistake I see employers make when terminating an employee.

If management does its job properly, an employee should never be surprised for being terminated for lack of performance/being a poor performer.  The employee will almost always disagree with the decision, but that does not mean that the termination should come out of nowhere.

Blocking and Tackling
Fundamentals are important in football.  They are also important in Human Resources.  There is a simple, but essential process employers should follow before terminating an employee for lack of performance.  Here are the 5 key steps:

#1 Notify the employee that the employee is not meeting expectations;

#2 Clearly explain the employer’s expectations going forward;

#3 Clearly inform the employee what the consequences will be if the employee fails to meet these expectations;

#4 Provide the employee a fair opportunity to improve and meet these expectations; and  

#5 Follow any employer policies dealing with performance and discipline. For example, if the employer has a policy to place an employee on a Performance Improvement Plan before terminating an employee, it should do so consistently.

Employees deserve to be treated fairly – even bad employees. Following this game plan is an effective way to ensure a fair process and minimize litigation and liability.  Employees are more likely to sue their employers when they feel they have been singled out and/or treated unfairly.  

By following these steps an employer will avoid a surprise termination that could motivate the employee to seek an attorney for wrongful termination.  Based on my experiences, even when employees vociferously disagree with the decision, they typically do not pursue a claim if they feel they were afforded some sort of due process.  

Additional Resources
For additional human resources lessons learned from the NFL’s Black Monday, please visit prior blog posts I have shared that discuss employment agreements, how to evaluate performance and handle terminations, including a termination checklist

As always, please let me know if I can help.