It can be tough to monitor your tongue while delivering the difficult news of a firing. But because some forms of misspeaking in this tricky context can be so loaded with negative legal consequences, it is especially important to keep your eyes on your lips. The last thing you want is for your words to come back to haunt you in the guise of a claim or lawsuit.
Some of the most common-and problematic-slips are discussed here.
We’re cutting back
It is fine to tell a fired worker that he or she is being fired as part of a plan to shed employees. But never use this reason unless it is absolutely true. Even though it may appear to be more humane, less judgmental, less accusatory to tell an employee that a position has been eliminated rather than point to his or her poor performance, it is a mistake.
If you later get caught in this type of fib by a former employee who claims the real reason for the firing was discriminatory or in some other way illegal, you would be caught unable to document your bogus claim. And this might cause you to suffer in front of a jury. You could easily find yourself on the losing end of an employee’s trumped up charge that the firing was based on discrimination or some other illegal motive.
And do not assume the former employee will never find out the truth. Keep in mind that former employees often have the time and motivation to monitor your workplace for many months after they leave. And former co-workers who remain on the job are often eager informants, ready to divulge when a new recruit is hired to fill the position or even a similar one.
We’re changing the company image
When firing a worker; do not refer to your desire to change the composition or culture of the workplace. Also, avoid talking of your plans to recast the workforce or implying that the employee somehow does not fit your intended new image. Any of these pronouncements could leave the impression that the employee is truly being fired for any number of illegal reasons: being too old, too foreign, too married.
Phrases fraught with potential harm that have actually been uttered to departing employees have included:
- “We’re after a more dynamic, aggressive workforce.”
- “In the Internet world, we need to project a hip image of people who really know what’s going on.”
- “We need someone who fits in better with the team.”
- “We must have employees with fewer family commitments who are available to see clients after normal work hours.”
In each case, the words came back to haunt the utterer—as evidence in a wrongful discharge claim.
We’re worried that you’ll hurt yourself
It is also a mistake to mention an employee’s injury or physical condition. This can be a particularly poignant form of poison if the employee you are firing is perceived to have a disability—and so may be legally protected by the Americans With Disabilities Act.
However, you are in a different position if that discussion has already begun. If you have tried every way possible to accommodate a disabled worker who has suggested specific changes to a job or workplace, it is fine to note how and why the attempted accommodations failed.
Mentioning someone’s physical condition also holds potential danger if the worker has been injured on the job and has filed a workers’ comp claim—and so is also strongly protected under the laws that prohibit retaliating against such filers. While you can fire an employee for excessive absences or for violating clearcut safety rules, you cannot do so because he or she has filed an injury claim-even if it causes your insurance costs to skyrocket.
Some final words of caution: Beware if a worker confronts you pointblank about whether a firing was related to his or her physical condition. It may signal he or she might attempt to paint the discharge as illegal and discriminatory. If the threat of a lawsuit seems likely, consider consulting an experienced employment lawyer for proactive advice.
We need team players
It is always a mistake to infer that you are firing someone because he or she is Not a Team Player—usually code for being a troublemaker. And this is especially true if the person truly is someone with a penchant for filing workplace complaints.
When up against such a soul, be prepared to state your own independent business-related reason for the firing. And be especially mindful of keeping the conversation short. You will not be able to win a debate with this person, who is likely to be most interested in baiting you into an admission that can later be used against you.
By Barbara Kate Repa
Barbara Kate Repa, a lawyer, is Vice President of Content for HR One She has written several books on employment law, from both employers’ and employees’ perspectives.
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