When it comes to terminating an employee, there are certain things employers should not say, but sometimes they just can't help themselves.
Jeffrey Polsky, an employment law expert in the San Francisco office of Fox Rothschild, has compiled a list of eight statements -- based largely on his personal practice and research -- that employers have made that have gotten them into trouble.
The compendium includes telling employees they are being fired because the company needs to get rid of deadwood or because there's too much gray hair around the office.
"I suppose these statements are slightly better than: 'You're too old.' But only slightly," Mr. Polsky wrote in a recent advisory to clients.
His other no-nos for those charged with terminating someone are telling them: It was the company's decision but that you disagreed with it; that they are being terminated for poor performance and that you probably should have pointed out their shortcomings sooner; and that firing them is hard on you, too. Mr. Polsky said the last statement could be used in court to make an employer sound self-centered and insensitive.
The only item on his eight-point list that's not based on personal experience is telling someone that their complaint to a government agency caused the company to question their loyalty, Mr. Polsky said.
His colleague, Fox Rothschild attorney Christina Stoneburner, added a ninth item: "Never say to an employee: 'Think of how much more time you will now have to spend with the baby.' "
As obvious as it seems that these words should not be coming out of an employer's mouth, it's just as obvious why they sometimes do.
It's because no one likes telling someone they are out of a job. It can be stressful, which can cause people to say things they should not. So the most important thing to do is decide what you're going to say before you say it.
"It's important to go in with a plan and give the employee a fair, straightforward explanation of what you're doing," said David Garraux, an attorney in Fox Rothschild's Pittsburgh office.
Mr. Polsky said employers should not read from notes or a statement, but rather look at employees and observe their reactions. He said it's also a good idea to have someone else from the company at the meeting.
If the employee is being fired for poor performance, that performance should be reflected in evaluations long before the decision to fire the worker was made, Mr. Polsky said.
Some employers do not like making critical comments in evaluations, which will not look good if they cite poor performance as the reason for firing someone. Mr. Garraux said the first thing the fired employee's attorney will do is review the personnel file to see whether performance problems were cited and whether the employee was given time to correct the problem.
Losing a lawsuit because you bungled a firing can mean paying back wages, attorney fees (the employee's as well as the company's), damages and other expenses. That makes it all the more important to handle the matter properly, Mr. Polsky said.
"It can be very expensive to do this wrong and far less expensive to get some advice before you make these decisions," he said. "Larger employers have a bigger target on their back because they are deep pocketed defendants."
But it's just as important of an issue for smaller companies and, Mr. Polsky said, there's plenty of affordable advice available to them on how to terminate someone.
Len Boselovic: firstname.lastname@example.org or 412-263-1941.