The Terminator: You Don't Have to Go Home, But You Can't Stay Here

[00:00:00] Welcome to Wine with HR. I'm Jules. Hey there, I'm Trish. Lawyers turned HR professionals. In our company, Monarch and Devers, we guide employers through their old shit moments with their employees. In this podcast, we will discuss some of the most common and commonly frustrating HR problems.

[00:00:32] While enjoying our favorite adult beverage, wine. So sit back, grab a glass, if you choose and join us as we think about and drink about all things HR. Welcome to this week's episode of Wine with HR. To term or not to term, that is the question.

[00:00:55] Don't, don't, don't, don't. What do you think, Jules? This will not be interesting, huh? Oh for sure. And it is an unfortunate fact of life that at some point if you are a manager,

[00:01:08] you are going to have to make the decision to terminate somebody. So today we'll talk about all the ways that you can make that a little bit easier

[00:01:17] and be better prepared for it and just tackle it when it comes up with the confidence that you deserve to have in these sorts of situations. And please remember, it's not always because maybe your employee has misbehaved or maybe because of a performance issue.

[00:01:43] We'll talk about all of that coming up, but it may be just because of downsizing or because of some other factor that really is out of your and their control. So we're going to give you tips and tricks about all of that as we go through. Yes.

[00:02:00] Is it fun? It is. Jules, will you tell everyone what we are drinking? Well yes, because Trisha and I are in the studio together, shout out to Evergreen podcast, Woo-hoo! And Gray, our fabulous producer for today. I'm so happy to be here.

[00:02:22] So Trisha and I get to drink the same wine which is very exciting. And today I have chosen a, I know there's a gomea shocker for everybody but in Italian wine, but it's a white wine and it is one that I have never had.

[00:02:36] So I picked up this bottle at a lovely wine tasting fundraiser for a charity called In Step With Horses that to my dear friend of me, Patel is on the board and she is a guest on one of our episodes as well.

[00:02:52] And it was at this adorable little wine shop called The No Type in Chesturlin, Ohio and they have all sorts of old typewriters all over the store and all these great types of wine with my love.

[00:03:09] So it was so cool and we had this Somalia B who talked us through all of these wines. This one in particular was not one of the ones we got to see on both, but I was browsing and thought this looks interesting.

[00:03:23] So it is a Biancolella from the island of Iscia, which I may not be saying correctly, but the Biancalella is an indigenous grape grown mainly on the heart and stark slopes of Iscia Island, strong wind, poor volcanic soil,

[00:03:42] made of pumice stone and obsidian are the extreme conditions under which this grape grows. The Biancalella reciprocates with incredible generosity.

[00:03:57] There is an intense nose of white flowers and spices with a hint of sage and gorse, which if you don't know it gorses, it's this really pretty, but prickly yellow flower that I hit a golf baller to into in Scotland.

[00:04:16] Anyway, ample palette, good acidity and great mineral finish. It is the perfect companion for seafood, either grilled or raw, like seared tuna and swordfish carpaccio. So, Tursha, I haven't really had a chance to have a sip, so what do you think so far? I really like it.

[00:04:40] I definitely taste the minerals at the end. The sage I haven't quite encountered yet, hold please. It's not easy to drink, but yet, is satisfying. Now I'm certain it's like I'm talking about a beer. I really really like it. I could never say the name though.

[00:05:06] Well, that's okay. You don't have to be able to say it to drink it, so that's the good news. Cheers to that. I will also say that it is a lovely golden color. It is really pretty. It's a very gold color. I like you can taste the minerals.

[00:05:22] I'm still waiting for the sage as well. But I have found that I definitely like these Italian wines from the volcanic regions. I have had several of those red white rosé. They've opened fantastic, so.

[00:05:38] I feel like when it sounds funny, but hey, we can all attest to this in our own lives. A little bit of stress, a little bit of challenge. We end up better for it and stronger in the end, so so to the grapes. Look at that.

[00:05:55] Just like diamonds, right? Oh, yes. Okay, so we have given you a several education on this particular white. So now let's get to the WHO any of the week. And Trish, you want to start us off with some reasons that you may want or need to fire someone.

[00:06:17] Absolutely. I think one of the first ones I will mention would be poor tendons. If you do not have a tendency as an essential function of your jobs, maybe consider doing that,

[00:06:32] because if someone isn't attending, and that could be virtually or in that kind of hybrid environment as well. We're not necessarily saying in person when we say it, and it's, but they have to be showing up in order to actually do the job.

[00:06:50] And we'll talk a lot, I think, about performance as we go through, but low performance or on professional attitudes. Julie is a big fan of saying when it comes to poor behavior, remember poor behavior is a performance issue.

[00:07:10] So we'll definitely just put those two in the same one. And then I think, oh, I know another one I want to add being in subordinate. I understand if you disagree with someone, but you can disagree with someone in a professional manner.

[00:07:31] Ultimately, though, if that person is your boss, then you have to go with what they say. Now, of course, if it's against the law or something like that, clearly that's a massive exception, right?

[00:07:45] Yes, but you know, you may not know the why. Hopefully they will share that why with you. But if they don't, and that's the way they say it needs to be done, then you have to do it.

[00:07:59] Yes, a hard truth, a hard truth and trust me to trust me, everyone. I know sometimes you just have to roll your eyes and smile, but roll your eyes to yourself. That's an internal I rule. And she's not talking about me.

[00:08:16] I'm never. No, you're fabulous. I love working with you. Although you have one of the best-eye roles I've ever saw. Yeah, well, and I can't always control it, but that's a different story. Can you give us some other reasons, Joel? Why we may need to let somebody go?

[00:08:35] Well, of course, there are the reasons that could potentially create legal liability for companies. So if somebody is bullying other employees or creating an autxic workplace, if they are engaging in sexual harassment of any kind, or if they are creating an unsafe environment,

[00:08:54] those are just a few examples of when you may need to terminate somebody because they are putting the company at risk of legal liability. You mean, like driving the forklift, well, after they went out for a three cocktail lunch? Yes, that would definitely create an unsafe environment.

[00:09:12] Okay. Just make a sure. Yes. But sometimes it's a little less obvious. So I was actually talking with a client today about a situation where they just have somebody who works on a job site that is a safety sensitive

[00:09:30] where this person just seems to have their head in the clouds a lot. It's not seem to pay attention or at least not the close attention that they need to be to keep everybody else safe.

[00:09:43] And so that is a potential problem, like thankfully nobody's gotten hurt and there haven't even been any close calls, but there have been some like, what plan is this person on? You know, like, and so no close calls. Right. Right. So sometimes it is more subtle like that,

[00:10:02] but you've got to be thinking of those things because you have a duty to all your employees, not just one in particular. I love it. I love it. So we've talked about performance reasons. We've talked about some things that you may have to do from a legal perspective.

[00:10:17] Should we talk about some things that we don't want to do before we get to some things we do want to do when it comes to letting someone go?

[00:10:26] Yes. Before we do that though, I want to two other things came to mind for reasons that you may need to terminate somebody. One you already mentioned where it could be like a reduction in force or it could be something a department or a division is being eliminated.

[00:10:41] Positions are being eliminated. Things like that where it really is probably not in the managers control and certainly not in the employees control. Might not be in the companies control to some extent.

[00:10:51] They're not. So there are certainly those situations and then I think that there are also situations where the person just isn't a good fit for that particular role, and maybe they are the nicest person

[00:11:06] and maybe they have a different skill set, but maybe unfortunately you don't have anywhere else to put them and they're just not working out in this role. And so that can be a really tough situation because everybody feels bad.

[00:11:22] You know, the person didn't do anything to, quote unquote, deserve it, but for whatever reason it's not working out. So there are a whole host of reasons we haven't covered all of them over the course.

[00:11:39] But it's not always because somebody deserves to be fired. Sometimes it just is what it is. You know, I know everybody out there is probably going, well, one is at staff time.

[00:11:52] You guys are not going to believe this, but we actually do not have any stats for you today. I think you could probably go out there on the internet and look to see how many people have been fired properly or feel good after being fired.

[00:12:10] And I'm pretty sure that most of those percentages are going to be next to zero. Yeah, so it just didn't make sense for today which is a hard truth for me. But all right. Let's talk about some things that you do not want to do.

[00:12:28] My first thing is going to be don't drag your feet in any of the situations that we have already mentioned, especially the ones like where Julie was just talking about, oh my goodness.

[00:12:41] I know that it's hard. I know that you don't want to hurt someone. I know that you're scared to do it because it is uncomfortable because they have done nothing wrong. But the longer you wait, the more awkward it's going to be for everyone.

[00:12:58] Now in a situation where they are being in subordinate or they're not listening or they've had poor performance or something like that, while dragging your feet basically says, oh well, then we're allowing that type of behavior.

[00:13:12] And you don't want to do that either when there's an issue you want to address it and move forward if you can, but if you can't and it is time to term, then do it immediately or as soon as is practically possible once you've made that decision.

[00:13:30] Most definitely I know we have said it on other episodes, but there's this most employers higher slow or no, I'm sorry, most employers. That's what they should do. Most employers higher fast and fire slow.

[00:13:46] And in most cases you want it to be the opposite. So you want to hire more slowly for all the reasons we have talked about on our hiring episodes and fire more quickly.

[00:13:58] Now, not so quickly that you haven't documented or you haven't talked to the employee, you know, in the vast majority of cases, it should never come as a surprise to the employee that they are being terminated.

[00:14:12] Now, again, that's the vast majority of cases. If it's a reduction in force that people didn't see coming then yes, that might be a surprise or if you know something extraordinary happens, it might be a surprise.

[00:14:25] But if you go to some of the things we were talking about where poor performance or allegations of sexual harassment or unsafe work environment, if it is coming as a surprise, that is a problem.

[00:14:45] Well, it'll be a problem for you when you get the notice of being sued.

[00:14:49] It's for the EOC is like, right, right, yes, more on that later. So so the other thing that I would really encourage you not to do is if you are a manager who is allowed to

[00:15:04] terminate people on your own without needing to get HR involved or somebody else in the company, I still wouldn't do it on your own.

[00:15:13] I would have a witness there. This is one of the things that HR is there for they are happy to sit through. I'm okay, maybe not happy. But they will. Yes.

[00:15:27] They're happy in this sense that they can control the environment and make sure that there aren't any legal issues that are going to bite you in the butt later. Yes, and they are happy to support you in what is a difficult situation. Shout out to the HR folk.

[00:15:44] But don't do it alone. It's always good to have a witness when you are terminating somebody just because it of course is going to be an emotional situation.

[00:15:55] Some people may get upset. You may stumble over what you're supposed to say and it's nice to have somebody else there.

[00:16:03] HR can kind of cut in and say, here's what's going to happen next. You're going to get a letter about your benefits. You're going to this did did did did did did did.

[00:16:10] And then you can just kind of tidy it up with as need a bow as possible. So I don't go it alone. Which should be good news to all of you that's pretty cool. People feel a little bit better, right? Little.

[00:16:22] So I have a question about that, Jules. I actually was thinking as you were talking, could it be anyone or should it be someone from HR?

[00:16:31] It should either be someone from HR or leadership. So if it is a manager and maybe somebody from HR isn't available for some reason then it should be somebody higher up than that particular manager.

[00:16:43] So like that manager is manager or somebody within the same team, but it's got to be management level perfect. I actually knew that. I just asked for our friends out there and they have had the question. All right, give us another don't. Okay.

[00:17:03] Anyone who's ever taken one of my seminars or one of my trainings knows that I have an issue, a big issue with the at will doctrine. What? Blom. Good lord. Okay. So everyone out there listen to me and listen close.

[00:17:23] The at will doctrine says that you can let anyone go at any time for any reason as long as that reason isn't against the law.

[00:17:36] So if you rely on the at will doctrine and you haven't done what Jules said having some performance discussions or documenting the reasons along the way and just all of a sudden you fire them.

[00:17:51] We talked about this with a me and Steven as well. We got into this whole thing and it's great to be able to say, well I'm firing Tricia because she wore blue shirt Steven mentioned his shirt.

[00:18:03] But I could always say that well yes, but they didn't fire Mary and Mary's under 40 they didn't fire Joe and Joe's a guy so it really had nothing to do with my blue shirt.

[00:18:16] So this is just one of the millions of reasons we could give you for documentation. The at will doctrine please please please understand what it truly truly is. Julie, I'm sure you have some comments on it.

[00:18:31] Well, yeah and I think we we have discussed it on other episodes and in particular that when with a me and Steven and where we go over some legal updates.

[00:18:41] But you want employees to know why they're being terminated and the biggest reason for that is because if you don't tell them. They're going to create a story and nine times out of ten. The story that they are creating is that it was not their fault.

[00:19:00] Of course not. So wasn't me no, yep, it was me. Shea get yeah they're all back.

[00:19:11] You get a song it I don't yes so they're going to create a story that story is going to be that it wasn't their fault that the company must have done something wrong or made a decision that was unlawful and that is how you end up in court or one of the many ways that you end up in court.

[00:19:26] So you want to be careful about that. Now you will often hear HR ask you questions about whoever is being terminated to try to determine if they are in a protected class. So such as over 40.

[00:19:43] Minority, a female, someone with a disability, a veteran, there's all sorts of protected classes. And the reason that HR might ask those questions is because it's good information to have. It doesn't mean it's going to change the decision.

[00:20:00] It doesn't mean you aren't going to be able to terminate this person if they deserve to be terminated. However, there are certain things that as a lawyer.

[00:20:12] You know legal counsel will tell you, you need to make sure you have dotted all your eyes and crossed all of your teeth.

[00:20:19] Because again, we need to protect you as the manager who is making that decision and the company from legal liability or at least minimize it to the greatest extent possible.

[00:20:32] So we do tend to look at all of those things and that is one of the reasons that HR and Trisha and I and all of your legal partners out there will harp about documentation because that is one of the ways that you prove that the reason you terminated somebody is.

[00:20:48] Actually, the reason you said you terminated them is because you've got a document that again if it's poor performance.

[00:20:55] You've had multiple conversations with this person. You've given them an opportunity to correct their actions and prove their performance and they haven't done that or if it's a riff you have documented why you've had to reduce the workforce. Reduction and force.

[00:21:11] Well, I said it a couple times earlier, so but yes. I was making sure they're with us. Yes, yes. So you've documented why that was necessary and how you made those decisions and how they were made in a an unbiased and equitable manner.

[00:21:30] So this is why documentation is so important because it shows that your you made legitimate non discriminatory business decisions. Again, I want to do a mic drop, but I can't because they have such nice equipment here. Yes, we never actually dropped the mic.

[00:21:49] But okay, so Trisha, I have a question for you. We talked about it a little bit, but I should you have a witness when you're terming somebody. Yes. Yes. Yes. Can I get closer to my more time? Yes. Why?

[00:22:11] I'm outside of the reasons that Julie has already outlined it is really nice. Okay, let's go to the basic feel feels let's just talk about the feels. Oh, I'm really that was a good pour. Yeah. Alright, I really like this wine.

[00:22:30] You would think this was our second or third episode. We were recording instead of the first. All good. Or I'll get giggly today. It must be getting to be together for a change. So from a feels good aspect, having someone there,

[00:22:45] knowing that they have your back, making sure that they are also supporting you and that you're doing it the best way possible so that you are as Julie just mentioned, keeping the company safe, but also keeping yourself safe.

[00:23:01] But then also for some reason it's just nice to have someone back you up. And then Julie and I when we talk to each other even, we kind of look to each other like, yeah, right? Right? And so that's always helpful.

[00:23:15] Of course, the other thing is having a witness really helps when someone does try to write their alternate ending of the different version of this story or if things get a little out of control,

[00:23:30] which hopefully if you follow our tips and our do's that we're going to come out with in just a second. You won't have to worry about. Can we get to those do's? Sure. I'm glad. Well, so when we've touched on a couple of times already, but provide warnings

[00:23:50] or at least communicate what the employee needs to correct, how they're expected to correct that, what the timeframe is that they have to do so. And then continue to have those conversations if they're falling short.

[00:24:05] As I mentioned, it should not be a surprise that somebody is getting terminated. So you want to make sure that you have had those difficult conversations. And if you have forgotten how to have those or you're worried about that, we have an episode for that. So we do.

[00:24:21] We do back in the season one. Go ahead and check that one out. Patricia, what's one of your tips? Prepare ahead of time. Oh, please, do God. Yes. Do not walk in and try to do this on the fly. Oh, you need Julie Zarnyset.

[00:24:39] Eyes dotted, tees, cross, ducks and a row. However you want to say it, you really want to make sure that you are prepared ahead of time. And then of course, you're going to meet with with the person in person or virtually if they're

[00:24:57] from home and bring them in really just doesn't make a lot of sense. But you want to meet with them not just like, I don't know, said the Minimil, you're fired. Maybe not the best way to hit with it. Yes. Yes. No emails, no post it notes.

[00:25:15] No, no. Don't just stop paying them. There's a lot of paths of aggressive ways we could do this and we're telling you don't do any of those. Please, please. A great thing to about preparing ahead of time is that this is your opportunity to work with HR

[00:25:35] or HR if we're speaking to you. This is your opportunity to work with your managers so that they're prepared and they don't happen to say any of those things where we want to like jump out of our seats and cry or drink wine.

[00:25:53] Yes, and on that note, this may seem a little hokey but it is not a bad idea to role play how the termination is going to go. And the reason that I say that is because just like with any other muscle memory,

[00:26:09] the more often you do something, the more comfortable you become with it. But you can also go through the different scenarios. So I think one of the hardest parts about a termination discussion is how the heck do you end that conversation? Right.

[00:26:24] Yes, especially if the employee has a whole bunch of questions or they want to try to argue their case or plead their case as to why they shouldn't be fired or any you're going to feel bad

[00:26:34] because even if they deserve it, even if you are like going to be dancing afterwards because this person is finally out of your life, it is still a terrible thing to have to tell somebody

[00:26:47] that they no longer have a job and that they're going to, you know, they're going to have to go home and tell their family that or they're, you know, whoever their loved ones are.

[00:26:56] They're going to have to tell them this and it's a terrible, terrible feeling and I'm sorry but if you don't feel bad about it, that's another problem. You need to come with Julie and I think we need to have private sessions. Yes, yes. And so, yes.

[00:27:13] And but they, yes. So it's not a bad idea to role play it because I do think you need to plan for all the contingency. So you do need to plan what are you going to do if somebody gets hostile?

[00:27:24] What are you going to do if somebody starts to cry? What are you going to do if they deny everything that you have planned to tell them as the reason why they are being terminated? What if they start to plead their case? What if they won't leave?

[00:27:38] Like there's so many things that could potentially happen. And so you need to figure out what your message is, keep it short, write it out if you have to and practice it because at some point,

[00:27:52] you may just have to say, I'm sorry but this conversation is over and it's time for us to go collect your things. But you've got to be ready to do that. And if you walk in and think you're going to do this off the cuff,

[00:28:06] we'll talk to you seven hours later when you're still in the room. Oh my goodness, I can't even. So I actually was going to play on that empathy word that I used and say show compassion,

[00:28:25] but now I'm thinking, okay show compassion, but please don't end up being there for seven hours. You do have to know how to end it. I will tell you the first person I ever had to fire was a friend.

[00:28:39] And that was one of the hardest things that I had to be a part of. And it is nothing that I would wish on my worst enemy. But through compassion and grace, we got through it and I'm still friends with that person today. So you can do this.

[00:28:59] So if you can do this, you can show compassion, you can show kindness. And I think that if you do that don't less likely they are to try to meet you in the parking lot later,

[00:29:12] or someone else. If they think someone else is deployment, by the way, if that's the case, you really need to involve more people than just yourself. Yes. Yes. Wherever you listen to your podcasts, we out. Julie, you mentioned something that I want to attack really quick.

[00:29:54] I have a real problem and one of our articles and you guys there's going to be a bunch of articles referenced in the show notes. All of these things that we're talking about are from

[00:30:06] those articles and from Julie and I is experienced. So as we're going through, we're not referencing the articles directly. But they're about four or five articles at the end that will help you

[00:30:18] kind of go through this and get yourself in a better position, including a firm article that I think is fantastic because it has this highlighted section in it that actually gives you the, hey, here's a bunch of things you want to consider. So I really like that sure,

[00:30:37] but I am not want to let people go get their items. I am a true believer in what do you need to get home today? Do you need a purse, a wallet, keys, jacket, things like that nature? And then

[00:30:52] anything else that's theirs we would send home to them. The reason I'm not a fan is because I have seen people try to assault others. I have seen computer skip broken. I, and it really

[00:31:06] is kind of degrading I feel for the person to be marched in front of everyone else. Someone's overlooking their shoulder. And so when I tell people this that, that this is the reason I'm doing

[00:31:18] this is no one needs to have that. You don't need to have that experience of me standing over your shoulder. This is actually for you. It's also a safety thing for the company. And then I tell

[00:31:30] them we will box everything up. We will have two people do it. By the way, I also take pictures of the top of the desk and all of the drawers and everything inside of the box. It gets itemized

[00:31:41] and signed to two people are doing this together. And then you either career it to them, career not career. Now I'm thinking of food. Career it overnight or the same day do not make

[00:31:59] them wait to get their items. So that's something that I'm always really stressing. What do you think about that, Jules? I think that's a great plan. I'm not 100% against letting people clear out their desk but to your point. This again is preparation. You have to plan for when

[00:32:21] you're going to do it which is oftentimes why people tend to let people go at, you know, the end of the day on a Friday because then they can go back to their desk, pack it up. I would have

[00:32:31] somebody there with them to observe and supervise. But as the assumption is there won't be as many people around, they'll be able to have some privacy to do it and then the nice thing is you're done.

[00:32:46] And you don't have to worry about packaging and up and trying to figure out what belongs to the person, what belongs to the company, et cetera, et cetera. But you've got to be able to control

[00:32:56] that environment because I agree with you 100%. No matter how much the person may deserve to be terminated, we want to preserve their dignity because if they feel that they have been lamblasted or embarrassed or humiliated or any of those things, that is going to make them more

[00:33:18] likely to want to lash out in the form of filing a lawsuit, coming back with a weapon, targeting people in other ways on social media, et cetera. So we want to preserve their dignity

[00:33:31] as much as possible. So I think my overarching thing would be, however you can do that, preserve their dignity to the greatest degree is how you should proceed. I like that. I like that a lot.

[00:33:44] Yeah, I never really have a preference of warning or afternoon either. I mean, I can make a great case for both, right? You let them go in the afternoon and they're like, you know,

[00:33:54] you were going to do this and you made me work all day. That's a jerk move. But if you let them go at the beginning of the day, then they could go out and they could get from court. Well, they

[00:34:05] could come back and you know, so I mean, there's there's positives and that could just to both. But I like what you said preserving dignity should be should be the focus. And I even have

[00:34:18] counseled people before like if you, you know, it's Tuesday. Don't wait until Friday. Okay, we've already talked about that right. We've already said do it sooner rather than later. But again, if you waited till Tuesday evening and you could even say if you're worried about this

[00:34:33] person or, you know, you want to give them something as the out pay them till the end of the week. Yeah, why not? Yeah, yeah, yeah. Well, and I want to touch back on the compassion piece of

[00:34:48] things for a moment because I think sometimes we just have to think about how we're defining that term. So oftentimes we think showing compassion is letting somebody down easy or letting them talk

[00:35:02] their way through things, you know, for hours on end or whatever it is. But even if you're terminating somebody and again, even if it's because of performance issues or maybe they did something really outside the lines, you know, whatever whatever it is, think of the worst case scenario

[00:35:20] and you know, the nicest thing that you can do or I should say the kindest thing. So I always go back to this. I've probably said it on other episodes, but I remember hearing this one time and

[00:35:32] it really stuck with me. There's a difference between being nice and being kind. And oftentimes the mistake we make is that we are too nice. We don't want to hurt someone's feelings, so we don't

[00:35:43] tell them what they're doing wrong. We don't want to have a hard conversation about terminating somebody so we keep them employed for way longer than we should. You know, but the kinder thing

[00:35:55] to do is to let somebody know or let somebody go so they can figure out where they belong. Right, you know, some I think back to some of the people that I have seen get terminated from various

[00:36:10] companies that I've worked with who have gone on to do amazing things. Oh, for sure. You know, and at the moment, of course, being fired felt like the worst thing possible. But in reality,

[00:36:23] it turned out to be the thing they needed. Yes, you know, and so if you are keeping somebody in a role where they are not succeeding because you don't have the guts, I was going to say something different.

[00:36:39] Thank you. Do you have the guts to tell them that they're in the wrong role? Are you really being compassionate? Are you really being kind? No, no. You're not even being nice at that point. Truth bomb.

[00:36:58] All right, so what else? What else? Well, you already mentioned document document document. One would have for the people back. Yes, document document document. But that also goes to the point to avoid the termination. And this isn't just about getting rid of someone. You want to have

[00:37:23] sincere efforts to help a person improve, specifically talking about performance. Right? You really want to do everything in your power to help someone improve and become the best version of themselves, the best employee that can be and help them be successful in a role. But if you

[00:37:43] can't okay find we're going to let them go but you really need to think about that first. Don't just get rid of someone. Think about how can you help? Think about where they're struggling.

[00:37:56] Is there a way that you can provide them some sort of a training? If you can't provide it through the company, could you be a resource and help them find something outside of the company,

[00:38:07] something that they could even do on their own? Because we really do want to avoid the termination if possible. Absolutely. Yeah, I think that's a very, that's a wonderful point. And I also think

[00:38:21] we need always need to step back and think have I done everything I could do because as we have talked about in other episodes, oftentimes managers, leadership in the company are avoiding having conversations because they're hard conversations to have. So have you really given that

[00:38:41] employee the chance to succeed? Oftentimes when employees fail, it's our fault. Yes, because we didn't give them what they needed. We weren't clear about expectations. We didn't give them enough training. We didn't give them enough resources. We didn't tell them

[00:38:59] when they weren't meeting expectations. And we let it go. You know, I always use the analogy, like if you do not have that conversation with an employee, especially when it deals with performance or bad behavior, which again is a performance issue, then you continue to hold that ball.

[00:39:18] If you tell them, then you give the ball back to them and it is their choice whether they get in the game or whether they continue to sit on the bench. Oh, good analogy, you know, if they continue to

[00:39:30] sit on the bench, then they're probably going to get it from the team. Yeah. But they may also take control and become your star player. So, but you want you don't want to be the one holding that

[00:39:43] to continue to hold that ball. You want to give it back to them. Let them make the choice. I really love that analogy. I think that's going to settle down with a lot of people over there. And I also want

[00:39:53] to say you said earlier, truth bra, I feel like that's a truth atom bomb. That is a big, big deal. The other thing, this kind of goes back to the don't do but it's also a, I guess we can make it into

[00:40:09] a make sure you do this as well. So again, I have probably said this before, but when you do have a good reason to terminate somebody. So I want to talk specifically about behavioral performance issues for this particular moment. If you have somebody, Trisha brought up in subordination,

[00:40:34] if you have somebody who is in subordinate and even worse, you know, comes in, I had a situation with a client where somebody was informed of a decision where somebody was promoted and they thought

[00:40:47] they should have been. And this person went into the director of HR's office and started cussing them out, dropping off bombs left and right. No, they didn't. Oh, yes, and telling them,

[00:41:00] you know why this was such a bad decision. And then they went into one of the VP's offices and did the same thing. And because this person was also on a valid family medical leave situation,

[00:41:15] intermittent, they panicked and didn't do anything. They thought we'll deal with it, you know, later. And here's the problem with that sort of situation. What could this employee do that is worse? Going into the director of HR's office and the VP's office and cussing them out.

[00:41:41] Not much, right? No. So then right there. Right. Right. So then if you don't terminate this person, then you've got to wait for something everything else is going to seem minor. So then when you

[00:41:54] finally do pull the trigger. Of course they're going to make up a story that it had to do with something else. Perhaps they're FMLA leave because they knew what they did was out of bounds,

[00:42:07] but they didn't get fired for it and now they're getting fired for something minor. So if you have a valid reason, take it. Oh, that just makes it bad, you know? But so many employers do that and I get it.

[00:42:22] Because lawyers have scared them. So like there are a million reasons you shouldn't terminate somebody and lawyers are going to tell you that because we're really risk of us for the most part,

[00:42:35] you know? And so we're going to confuse you with all of that sort of stuff and we'll tell you and we've scared you and I apologize for that. But I'm telling you now if you have a

[00:42:47] really solid reason, then act on it. And if you are nervous about it, then reach out to council, shock them and then do it. Yes, but do it immediately. Don't wait. Yes. I think I have one more

[00:43:05] that I want to add to our to-do list that I think is huge. We always talk about document, document, document, everybody's heard us say that a hundred times and they've heard us say the

[00:43:18] consistent. And so I want to talk about consistency and my recommendation would be have a termination checklist. The best way to make sure that you are doing everything that you need to do,

[00:43:33] that you are handling these in a, again, consistent manner so that no one can say they didn't do this with why person, but they did this with me and they did it with me because of my protected

[00:43:45] class or characteristic. It's very simple. We have a checklist, we go through it, and then not only that, it's something that's in writing. So now we've been consistent and you've documented. Thank you. Anything else you want to add to your tools before we go to our

[00:44:05] tips and tricks for people? Our final tips and tricks that is. Now I think that I think that we should go to our final tips and tricks. All right, would you like to start? Sure. So I know we said

[00:44:23] you want to keep it short. And you have to plan for how you're going to end the conversation. But within that, we do want you to give the person a chance to be heard for whatever they want to say.

[00:44:37] You know, you don't let it go on and on and on and at some point you may have to cut them off. But one of the things that I saw very frequently in lawsuits is that the employee, one of the issues

[00:44:49] they had is that they never got the chance to tell their side of the story. So even if it's a bunch of malarkey. And they're just trying to save their patouli. Let them have their say, you know,

[00:45:05] two a point again. You've got to be ready to cut them off. You've got to be ready to say like we're done with this conversation. We're going to let you gather your things or we'll send your

[00:45:15] things to you or whatever the case may be. But let them have their say because oftentimes that does help them release some of it. And they at least be like you listened. Now don't

[00:45:27] be writing in a notebook or texting somebody or doing something that be listening, be present. Again, you can show empathy. You don't have to be a robot in these situations. You can

[00:45:41] say things like this has to be really hard to hear. I feel for you, you know, things like that. You can be human as we always say. Yeah, but you want to give them a chance to sort of process

[00:45:56] and say what they need to say as well. I think that's huge. I absolutely think right, we always say that people want to feel valued. They want to feel heard. This is one of the ways you can show

[00:46:08] respect. So I love it. I love it. You know, the other thing is even though you may be ending on a bad note, there probably is some good that they brought to your company or some value that

[00:46:25] they have added. If if they have then don't forget to think them for that. Especially in those cases where the termination is not their fault. It is due to a riff or something of that nature. You want

[00:46:41] to make sure to have that conversation and remind them of all of that so that they leave at least not leaving themselves in the situations where it isn't their fault. And of course, when it is,

[00:46:57] it's say we don't want to just say you were this whole thing was terrible. You've done this. You've done this. However, this is too big to ignore. Well, and again, I think people appreciate

[00:47:09] that. So I'll share a story where I had to have a conversation like that with someone where this person had messed up big time in a way that we could not fix. And as a lawyer,

[00:47:25] it was a really bad thing. This person had missed a deadline and there was nothing we could do about it. And then we had to make things, yeah, it would make things right with the client, which cost

[00:47:36] a lot of money. And there had been some warning signs and this person had been told that they needed to figure out a better way to make sure they didn't miss deadlines and things like that.

[00:47:50] This was totally, it was a big, big, big f-up. And there was some decision making. There was a whole bunch of people involved in the decision about whether or not this person was going to be terminated.

[00:48:06] And it dragged on for way too long. So to your point, don't drag it out because this poor person had to keep coming in to work wondering if that was the day that this person was going to be fired.

[00:48:16] And that is a horrible way to exist. So at one point, and I'm telling you, this went on for weeks. So at one point, this person, I worked pretty closely with this person. I unfortunately didn't have

[00:48:31] the authority to make the decision. But this person was pacing outside of my office. And so I was like, you know, come on in and then they asked me, you know, do you have any idea what's going to happen?

[00:48:45] And I said, I don't. But I do want to talk to you. And I said, I think that it is important for you to know that I recommended you be fired. And I said, I think it's important for you to know that

[00:48:59] because you did mess up in the biggest way possible. Yeah. And you do deserve to be fired for this. And in many, many cases, you would be yes. But then I said, but I don't want you to think that

[00:49:13] that is the end of your career or that this one moment defines you. Well, so I said, you know, if you are fired, then you need to figure out how to never make this mistake again. And if you're not fired,

[00:49:29] you need to figure out how to never make this mistake again. And that doesn't mean that you're not going to go on to be a very successful attorney that doesn't mean that this is again the end of your

[00:49:40] career. You know, when you're going to be making six-inch subs at subway for the rest of your life or anything like that, it's way appreciate either way. Those who make some think you've been a much

[00:49:49] love you. Yes. But it just again, it is what it is. It happened and what defines you is what you do from this point forward. And so I can tell you, it was a defining moment for me because of course,

[00:50:04] there was a horrible conversation to have with somebody. But at the same time, I could see this person like visibly exhale because somebody finally bothered to tell this person. The truth, you know,

[00:50:21] and to tell them what to expect or just to be prepared. You know? And I think that sometimes we go through all those worst-case scenarios in our heads and sometimes it's just better to deal with

[00:50:35] them be like, okay. So worst-case I get fired what then? Yeah, what's my next move? And if you can get somebody to that point where they can start planning, then that can be really helpful for them as well.

[00:50:49] And to your point, usually there is something that they have contributed, you know? So even if they're not like maybe their skills just weren't or they needed to be. But this person brought a lot

[00:51:00] of joy to the office or everybody talked about how nice they were to work with. Yes, share that information, you know? Like there's all sorts of things. You could still I had another situation where

[00:51:13] again somebody messed up big time it was a lapse in judgment. It was something that was more behavior related than performance related. This person had done a lot of really good things

[00:51:25] about what the company for a really, really long time. So we talked about that. Like this is really unfortunate. None of us are happy that it came to this point but we don't have any other

[00:51:36] choice. Yeah, exactly. And you know what? Parted on the best terms, possible. I like the the other one I think that I'm going to completely change because I want focus on this too.

[00:51:51] When you do let someone go for an if it is for a particular reason, it's not like okay we've gone through this full progressive process or maybe you have gone through the full progressive process

[00:52:07] you don't have to focus on every little incident. Yes, please do not rehash the past. If you bring up those past incidents or some of these negative issues, why? Right. It's now they know especially if you have followed the quote unquote formula and you've

[00:52:30] gone through that process they know about the past mistakes they've made. If you want to say, you know you're at the end of our progressive discipline process then that's fine. They can put

[00:52:40] the rest of the pieces together themselves, but just bringing it up and adding fuel to their fire or making them feel worse about themselves or going on and on and on about all the bad things

[00:52:54] that they've done. It's really not necessary. Again, unless it's relevant, right? Right. Right. But going back to the preserving their dignity to the greatest extent possible. If you don't need to keep on at this point, they're already going to feel probably as bad as you can feel.

[00:53:10] Yeah, because they just lost their job. Exactly. We don't need to add insult to injury. And you guys, you know, Julie and I are always fans of whenever possible where we're talking about preserving dignity, we're talking about giving them assistance. Don't forget if you haven't

[00:53:30] termed them for some performance reason. And you feel like you can offer advice or even a assistance with the job hunting. Again, if it's if you're an individual, a manager or HR make sure

[00:53:45] that you know you have the permission to do that. If it is HR, you know what your company will allow. But maybe maybe there's something that you could do. Yeah, absolutely. You know, sometimes

[00:54:01] there isn't just like you're saying. Exactly. If it's a possibility, then that could be a kinder gentler way to yeah and the conversation. Yeah, I'm always a big fan of that. Yeah.

[00:54:14] The last thing I would say and we've touched on this a little bit, but again, you have to do this in a compassionate and kind way not a condescending way, but you can talk to them about how this

[00:54:26] might be the start of something new for them that this may be leading to a better opportunity, where they just weren't able to fulfill their potential or to really recognize their talents

[00:54:39] in the role that they were hired for and that it's unfortunate that it didn't work out. But, you know, we wish them the best of luck and maybe our past will cross again. Again, you want to be careful.

[00:54:51] In all, very situational as to whether you're going to say all of this sort of stuff. But, you know, it may be that they're this just really wasn't the best role for them and that if they find a different role, whether it's inside your company, outside your company,

[00:55:11] in your past cross again, it could be completely different. I couldn't have said it better myself. You've already mentioned to Jules and I think we should just say it one more time,

[00:55:24] severance packages, co-bra, any other things that the company is required to provide by law or just say within their obligations. Can you go into a little more detail about what some of those things

[00:55:41] might be? I can try. So, cobras are big one because there are certain time frames within which you have to notify an employee of their rights under cobra that is if your company offers

[00:55:54] health insurance benefits, HR is the department that will handle that. Sometimes they have a third party who does it but either way, HR can make sure that that gets done. Other things, there may

[00:56:07] be some employment issues, usually if the person is terminated for cause, then they're not going to be eligible for unemployment but if it's a reduction in force or something of that nature, they may be eligible for unemployment. I love the fact that you said usually and maybe.

[00:56:26] You never know. Well, you never know with unemployment. Yes. So, there may be some things around that. If you choose to offer severance, then there are agreements that go

[00:56:41] along with that and things that have to be signed and payments that have to be made in all of that kind of stuff. A lot of severances are never required but they are often something that companies

[00:56:54] tend to offer to a certain level of employee and there are sometimes is like a particular amount of weeks for years of service or something like that. But again, that's very company specific and very industry-specific. That may not apply in this particular case but the biggest thing is

[00:57:15] probably that cobra notice is probably the biggest one. That's what I was thinking to sweet. Can we talk more about the wine? Yeah. Absolutely. I really think I don't have any final thoughts

[00:57:30] as far as the topic goes. So I really want to go back to the WI ending because it's delicious. It really is. This might be one of my favorites. I'm thinking as well.

[00:57:43] So just in case you have forgotten, we do put all of our wines. We have a list of all of the wines that we drink and try each episode and we will have those on our website so if you're curious about

[00:57:55] this one, make sure you check that out. As always, if you have recommendations about wines that you would like us to try. Feel free to set those our way because we are always, always up for trying

[00:58:06] into one of these. Oh yes, so any other final thoughts on the WI-N-E for you, Tricia? I love it. I really am going to go back to the whole mineral aspect of it when you were first reading

[00:58:22] that. I was like, oh, I told really get that. I really like the way it finishes. I think I'm finally getting this age. They haven't gotten those notes of stage yet so I'm

[00:58:32] and I have to keep subbing and see if I can figure that out. I'm telling you it would complement Thanksgiving dinner very well. Oh yes. I like it. I like it. All right. So I think on that note,

[00:58:47] we are going to end this episode. We do appreciate you all listening as always. Please subscribe wherever you get your podcasts and follow us on social. Cheers!