Termination - Need Advice ASAP

We have a sales person in Ill. This guy is apparently a real piece of work. (I am new, so I have only met him once). At our sales meeting a couple of weeks ago all of the sales people were asked to give a presentation in PowerPoint. Everyone did .. except this guy. And when he got up in front of everyone he presented himself very unprofessionally and was very embarrassing. Additionally, he just isn't doing well and does not get along with others well.
We're headed out to Ill. tomorrow to terminate him. Now, there are two problems ... 1. I am new and so is our VP of sales ... there is no supporting documentation for this guy. His file is empty other then the one or two doccument conversations we have just recently had with hi, 2. He is in his late 50's .... no doubt he'll claim age discrimination.

We of course are going to present him with a severence package along with a waiver. But, I doubt he's going to take it. In fact, we know he is going to fight this. My first question is what exactly should we tell him when we fire him? What can I do to limit our liability? Suggestions??? HELP!


  • 9 Comments sorted by Votes Date Added
  • No documentation at all, eh? So, if he files an ADEA claim saying that he was fired because of his age, what are you going to show EEOC that he was fired for non-age reasons?

    How long has he been with the company? Because if he has been with the company for any length of time, why would you be firing him except for age since you can't establish that he was a problem employee? Look at the situation objectively. The employee has been around for years. Is 50 plus. You fire him. Either you give no reason to him or you identified an undocumented reason (which actually makes the case against you worse since you can't substantiate your claimed reason at all). But if you give no reason, then why did you fire him?

    How many other emplyees have you fired for undocumented reasons? Were they under age 40 or over age 40? How many over age 40 employees do you currently have and what are there positions?

    Where was the employee's supervisor and manager while all of this supposed problem stuff was occurring? Maybe that's the only people you need to talk to at this point and then start the documentation from "square zero."
  • I'm in agreement with giving the company some time to build a case. You'll regret it if things so sour. If he's such a loser, it will take no time to do it, probably less than two months. It also reinforces to the management involved that personnel problems need to be dealt with in a progressive discipline manner.
  • Why not make the trip a "wake up call" for this guy. Place him on probation, give him some goals, and document that you warned him in very strong terms that his job is in jeopardy. Hatchetman has some very valid points --- Why take the chance? I am not good in the documentation department myself, but unless he is guilty of "gross misconduct" I would recommend a step back from termination until I had better circumstances.
  • You are almost certain to lose any legal action since you have no documentation. I would first check to see if there are any files kept somewhere else that you might not be aware of, and if there is truly no prior documentation, I would work through that process. It will take some time, but will probably cost less in the long term than the inevitable legal action you're going to face.
  • Your question is what can you do to limit your liability. Here it is. You should cancel the trip to Illinois and put together a performance plan. Previous management hasn't done their job and that isn't the employees fault. Who knows, with some help, this employee could turn around. On the other hand, if he doesn't you have documentation and your liability is reduced - not eliminated, reduced. Sorry to be so blunt, but I do a lot of expert witness work in cases such as this and it's a loser for the company that you work for.
  • I hope this doesn't reach you too late. I have been in your exact position with an engineering firm. My first month, I was sent around the state to terminate employees.

    1. Warn all parties involved in the termination abouth the possible ramifications of terminating an employee over 40 with no written counseling history of poor performance.

    2. Document the fact that you have met with and explained everything to them, copy them, keep a copy for yourself. If you didn't already do this, then write up a summary, noting the dates you counseled them. This is your personal CYA in case this ever goes to court. This also shows due diligence on your part and can reflect well on the company if you do the following.

    3. Research past performance reviews for any hint of poor performance.

    4. Review attendance history - absences as well as tardiness.

    5. Review production history.

    6. Look for patterns in 3, 4 & 5.

    7. Interview past and present supervisors to determine if and when they had casual conferences with this employee regarding poor performance. If there are any notations in their calendars regarding meeting with this guy, these can be cited in your termination documentation. If you go to court/mediation, these should be acceptable. They were for me. I copied the calendars as part of the mediation package.

    8. Tie your new documentation to what you have in 3 - 7 to make up your termination documentation.

    9. Write up your termination summary. You might want your legal counsel to write this or at least review it if you've never done this before. Reason: you are going to give him a copy. Let your legal counsel decide whether or not to have him sign off on the document. If you've kept the information limited to behaviors as they relate to performance, this should be okay.

    10. When terminating the employee, keep the conversation limited to behavioral references as they relate to performance.

    ***You don't note how long the person has been with the company. If you are within 90 days (or other noted probationary period), then you can terminate for any or no reason if you are in a Right to Work state. Check your state laws, which I'm sure you've already done.***

    11. Control the meeting. Decide ahead of time who leads the termination discussion. On your way to IL, talk about possible arguments that may come up and decide how you'll handle them.

    12. Upon your return, meet with your prez. S/he needs to be formally updated on the risks the managers are exposing the company to, and get an agreement to begin holding managers fiscally responsible for timely, meaningful reviews. Suggest a performance management system that includes some form of 360. This will force year-round communication and performance tracking, and your risks will automatically decrease. Upon approval, put it in writing.

    13. Introduce your new system to managers and staff and implement. Know that you'll face detractors. Know also that if you have the prez's backing, and s/he holds to the same standard, you'll have decreased your risk by half the moment you've made your new expectations clear. The remaining risk will slowly decrease over the course of about 18 - 24 months - about the time it takes to do one big compensatory review based on perf. mgmt. documentation and resulting turnover and training that follows.

    Good luck, and hope everything works out for you.
  • Is Illinois a "right to work state", if so, in the first 90-day
    probationary period employers need no reason to terminate employment
    with employee. I am in Texas which is an "at will" employment state and we
    utilize our "at will" law in the probationary period. We continue to
    document as much as possible irregardless, but may not have a lot in the
    file in the first 90-day probationary period and continue to utilize the
    "at will" law, terminating with no reason in the probationary period.

  • It appears that you have had excellent advise from the prior messages and reply. However, I may only suggest further, (using this experience) that your management team needs to be trained in the areas of documentation and terminations as well as problem solving. You have not said how management feels about this termination, but hopefully your highest level is informed. If they are not it sounds like training is needed asap. Good luck - if this experience goes bad or sour, remember it takes a team of people to work together. Keep your spirits up and go forward. But get that training done.
  • How have you handled other employees with a similar lack of performance? Even though you don't like his behavior, do the homework to protect the company. What does your handbook, policy and procedure say regarding company expectations. If we had a similar situation, I would advise the department manager to tell this guy what the rules are and document the incident. Advise the employee that you expect continuous and sustained performance and tell him what that means. Make sure he has the appropriate training/retraining. Advise the employee that further infractions of this type may lead to additional disciplinary action, up to and including termination.
    Good luck.
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