Washington Labor Law Blog: Insights on the Law for Washington Employers

The Key to Easier Terminations

Terminations are never easy.  But I learned as a manager that one thing, giving the employee advance warning and an opportunity to improve, was one key to making terminations easier for me and for the employee.  As an employment lawyer, I have learned that the advance warning, and specifically a final written warning, coupled with the opportunity to improve goes a long way toward reducing the risk of litigation.

As a manager, I found that when I had not made my expectations and the consequences for failing to meet my expectations crystal clear to an employee, that employee was certain to be angry and to argue with me about the decision during a termination meeting.  In contrast, when I had previously made both my expectations and the potential consequences clear long before the termination meeting, the meeting was less likely to be hostile.  Usually, the employee still did not agree with the decision and was still upset.  But having a mutual understanding of my expectations and the consequences of failure, it was easier for me to communicate the decision and easier for the employee to accept my decision.

How much advance warning you give depends on the circumstances.  But, generally, enough time for the employee  to turn things around.   For something like punctuality, that could be as short as one day; for performance issues, it generally will be longer.

There are probably several reasons why advance warning eases the pain for the employee and supervisor.  No one likes to be fired.  But what makes it worse is the feeling of not having been given the chance to “fix” things to avoid the discharge.  Giving the employee advance warning and the opportunity to improve empowers the employee.

Supervisors are willing to give the employee an opportunity to improve; in fact, I think they often give too much opportunity.  But supervisors often fail give an effective advance warning.  For maximum effectiveness, this warning should be in writing.

Supervisors often are not honest about the consequences of non-improvement and, even when they are honest, the employee often does not hear the message.  A written warning helps avoid this failure to communicate.  When you have reached a point that failure to immediately improve will result in discharge, the employee needs to get that message, not a watered-down version.  Thus, the written warning should say something like “Failure to make immediate and sustained improvement in [area needing improvement] will result in your discharge.”   No pulled punches:  improve or get fired.

Supervisors are often reluctant to give such a warning for fear it will undermine the employee’s motivation to improve.   This fear is well-founded, but the problem can be overcome.  I learned that employees got less upset with me about a straight-forward threat of discharge when they still had time to turn things around than when they thought they had been fired out-of-the blue because they misunderstood the seriousness of the situation.

Another reason for the warning to be in writing is that it helps avoid litigation.  In litigation, witnesses often forget or lie about what actually happened.  Having the written warning goes a long way toward proving the employee was informed about his or her deficiencies and the consequences of failure to improve before the discharge.  Also, in discrimination and retaliation cases, the written warning is strong evidence of the employer’s legitimate non-discriminatory reason for the discharge.  (It’s also a good idea to have a the employee sign a copy of the warning to acknowledge receipt.)  Having strong documentary evidence supporting your case makes it less likely a plaintiff’s lawyer will take on a case against you.

Certainly there are circumstances when giving a prior warning and opportunity to improve is not possible.  But when it is, I recommend that you give it.

Have you found giving a final written warning made a termination easier for you or your employee?

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