Bloomberg Law
Nov. 3, 2020, 9:01 AM

Are You Emotionally Assaulting Employees During Terminations?

Jonathan A. Segal
Jonathan A. Segal
Duane Morris

There is an adage attributed to poet Maya Angelou, and others:

“People will forget what you said. People will forget what you did. But people will never forget how you made them feel.”

I have had many cases for clients where an employee was treated fairly and respectfully until the termination event. But, as a result of what was said or done at the termination, the employee left feeling embarrassed, angry or otherwise hurt.

Hurt feelings often get former employees to lawyers. Even the most pedestrian plaintiffs’ lawyer can find some basis to argue that a lawful termination was not.

Even if the employee does not sue, he or she will suffer (a bad thing in and of itself) and others in the workplace undoubtedly will learn of what happened and fear the same could happen to them. Not sure creating culture of fear is on anyone’s list of things to do.

The risk of a termination event going wrong is even greater as a result of the emotional rawness most of us feel, at least some of the time, as a result of the pandemic. Plus, in many cases, the remote reality makes in-person conversations often impossible.

Following are three of the more salient danger zones that may result in the terminated employee focusing on how the employer had made him or her feel.

1. Terminating Employees Without Notice

Greg is working remotely. He tries to sign in one morning, but he is locked out of the system. He calls the “help desk” only to be told they cannot help him. He asks why. The response: “I don’t see you as employed by us.” Greg confirms with HR that his employment has been terminated by Doug.

During the pandemic, many of us feel a blurring of time. And, then, there are those growing lists of things to do. This can be a combustible combination if the post-termination steps are implemented before the employee is told that he or she has been terminated. It can happen. It has happened.

In every termination, a chronology of events should occur to make sure post-termination steps do not occur before the employee is afforded the decency of notice that his or her employment is terminated. Consciously focus on this or pay the price of an assault on dignity.

2. Using Faceless Platforms

Diane schedules a Zoom call with Susan to terminate Susan’s employment. During the call, Diane keeps her video off. Susan turns off her video in response and then learns from the voice behind the blank screen that she is being terminated.

Why was Diane hiding? She couldn’t even deign to look at me when terminating me, thinks Diane. And, what was she hiding? Our plaintiffs’ lawyer puts her call on hold.

If you are going to use a remote platform rather than a call to end an employment relationship, then use the video component, even if the employee turns off his or her video. Otherwise, why use the platform?

And, while we are on the topic of remote platforms, please focus on what you are wearing and what others can see or hear when on a remote background.

As to the former, you don’t need to wear business attire but a concert T-shirt (or less) may suggest a lack of seriousness and no termination should be implemented lightly and no employee should feel as though it were.

As to the latter, take the time to minimize the potential for interruptions. Not good if the employee sees the manager’s spouse or child. Confidentiality matters.

3. Making Self-Consoling Statements

Most managers don’t enjoy terminating employees. In fact, if one does, may I suggest that you replace them? When we are not fully comfortable with what we are doing, sometimes we say things that make us feel better about what we are doing. The possibilities here are almost endless. Here are but three examples:

  • This is just as hard for me as it is for you. There are very few absolutes, because absolutes are absolutely assailable. But it’s always harder to be fired than to fire. Don’t ask an employee who is looking at unemployment during (or after) a pandemic to feel your pain. You may end up feeling his or hers.
  • This is not the right job for you. When you get the right job, you will thank me. And, the employee will get that dream job in the next week. If that does not happen, and it probably won’t, expect the employee’s anger to grow with each day of unemployed isolation. Prepare to be the object of the employee’s ire.
  • I know how you feel (in response to the employee’s expression of fear after being told they are fired.) Unless you have been fired during a pandemic, you don’t know how the person feels. And, if you have been fired during a pandemic or otherwise, now is not the time to bond over your common experience. Can’t you see the deposition questions?

When planning a termination event, always keep in mind: How will the employee feel when this is over? That includes focusing on when you are going to do it, how you are going to do it and what you are going to say. Employees deserve no less.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Jonathan A. Segal is a partner with Duane Morris LLP. A former litigator, his practice focuses on maximizing legal compliance and minimizing legal risk with an eye on culture. Areas of concentration include managing in the new normal; diversity and inclusion; harassment and civility; wage and hour compliance; workplace investigations; pay equity; and employment, severance, and business protection agreements.

This column has been prepared for informational purposes only and does not constitute legal advice.