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The Perils of Dragging Out a Termination Decision

In the 2009 movie Up in the Air¸ George Clooney played a human resources consultant who specialized in “termination assistance.” While conducting employee layoffs and firings for other companies, Clooney travels the country, accumulating the highest frequent flier status on American Airlines. Clooney’s character has a job because his clients are scared to handle firings themselves. Although most companies handle their own terminations, unlike Hollywood’s portrayal of “high-flying” termination consultants, the employers’ “fear factor” highlighted in the film manifests in real life by sometimes causing companies to delay giving bad news to employees.

Most human resources managers know what questions they need to ask when evaluating the risks inherent in any particular termination decision: Has the employee been previously counseled and was that counseling documented? Does the employee belong to any protected class? Has the employee recently complained about something or has he recently disclosed any serious medical condition? And perhaps most importantly, how has the company handled similarly situated employees in the past?

One thing that we sometimes fail to talk to our clients about is the importance of moving quickly once a decision to terminate has been made. Too often, supervisors or human resources managers drag their feet in communicating the decision after it has been made, possibly because they do not want to be the one that brings the bad news. The problem delay creates is that targeted employees become more likely to see the writing on the wall and may take an opportunity to file real (or imagined) complaints or raise real (or imagined) health problems. Once the employer has notice of these complaints or problems, an otherwise legally “bullet-proof,” or at least “defensible,” termination has become much more problematic.

So what should an employer do? While terminations should be handled as quickly as possible after the decision has been made, delays are sometimes inevitable. The persons handling the termination may not be available or the employee that is about to be terminated may be on the verge of getting married and going on honeymoon, and no one wants to deliver the bad news before the employee returns. In those situations, the best thing to do is to document contemporaneously by e-mail the decision process between the supervisor and HR. That way, if the employee becomes suspicious of termination, brought on by perceived differences in treatment or his working environment, and decides to preempt the termination with an intervening complaint, the employer can demonstrate that the decision to terminate had already been made.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.