Is There a Right Way to Fire an Employee? We Ask the Experts [311]

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee?

We would like to thank our guests for this episode:

  • Amr Shabaik, Civil Rights Managing Attorney with CAIR Los Angeles
  • Patty Cuthill, Director of People & Culture with NextLevel Internet
  • Anitra Negrete, Director of Human Resources with Leaselabs by RealPage
  • Tadessa Williams, Director of Human Resources in Houston, TX

Full Podcast Transcript

NASIR: Look, the other person you’re firing, they’re a human being.

PATTI: Well, you’re miserable. They’re probably pretty miserable, too.

NASIR: Even if you have a script, it’s going to go off-script.

PATTI: You want to pull the band-aid off right away.

MATT: But there is some finesse to it. It’s not like you’re a robot.

NASIR: You really have to treat these people with dignity and respect.

NASIR: You have every right to terminate this employee. They may be surprised at first, but not secondarily. There are a couple of things that happens when you have someone else in the room.

NASIR:All right. We’re here to talk about how to fire somebody. In fact, we’re going to do something different today. We’re going to bring someone in – onto the podcast – and fire them live on national podcast… No, we’re not doing that, but we are doing something different today. Right, Matt?

MATT: Yeah. You know, we obviously have our input from the perspective of attorneys, but we’re not always the ones that are terminating people. Oftentimes, with our clients, there’s people within the company that are handling the terminations, so we figured it would be best to get first-hand experience from, well, four individuals that have terminated people ranging from – what do you think? – like, five years to fifteen years. It’s going to be some valuable information for any business owner.

NASIR: I think, put together, literally decades of experience – not including hours. And so, I don’t know. Let’s take a listen and introduce some of our guests. There’s four of them – three are HR professionals and one employment law attorney. Here they are!

ANITRA: So, I’ve been in human resources going on now 20-plus years.

AMR: I practiced employment law for the past six years before starting my current position at CAIR LA which I started sometime in late 2019.

PATTI: Well, I’ve been in the HR field – human resources field – for I think over 15 years now.

TADESSA: I’ve been their director for 11 years. Prior to that, I have a fairly extensive background in HR consulting, specifically working with professional employer organizations.

NASIR: So, I’ll tell you, these people are across the map. What I find interesting is that basically they’re from two states, I should say – Texas and California. The Texas perspective, the California perspective, you can very easily see the difference. Luckily, you know, Matt and I – you obviously live in California, and I live in Texas. Obviously, we practice in both states – our firm – but it’s good to have that kind of dichotomy, don’t you think?

MATT: Oh, yeah, definitely. As listeners will hear during the recordings we’re playing, it’s very different in terms of employee protections in California versus Texas. I guess, for those that are multi-jurisdictional, maybe they’ve encountered it but, for those contained within one of those two states – or even another state – there might be some surprising information that they’ll be hearing from these individuals.

NASIR: Right.

Even though they had different perspectives, I think they all had a common theme of how to approach a termination, and I think this is something that we preach quite a bit as well. It’s like, “Look, the other person you’re firing, they’re a human being.” At the same time though, they had different kind of subtle perspectives on it. Let me just play how they all approach the termination process.

AMR: You do want to make it as humane as possible, and you want to let the person off easy, give them a runway or whatever it may be.

TADESSA: You know, make the distinction between emotion and what the focus should be which is, “Are we focusing on whether or not this person can perform their duties? Are we focusing on whether we can correct whatever deficits there are and get them to perform the duties we hired them to do?” because it costs to hire, right? So, that’s a whole other podcast, right?

There are significant costs to hiring – you know, significant costs associated with hiring the wrong people and having them exit your organization too quickly.

PATTI: There’s a thought leader. His name is Bob Chapman. He has this quote. “Everyone is someone’s precious child.” Sorry. I get a little choked up when I think about that/

ANITRA: We want to always consider that human aspect and be as compassionate as we possibly can, but then we do have to draw a line in the sand at some point.

NASIR: Right. You see how I thought one of the HR directors that quote Bob Chapman? Her name is Patti Cuthill out there in California. She was interesting, but you can see how each of them, to a different degree, took into consideration the emotional, the human aspect of the person you’re hiring. I just want to add, these are HR professionals. Part of their job is risk management to understand to protect both the employer but also minimize risk and these kinds of things. It goes to tell you that this stuff actually matters. This isn’t just something that people say, like, “Yeah, you have to be nice and be respectful.” There is some purpose to it other than, you know, being a good person.

MATT: Right. I’m not going to try to put a percentage on it, but I would assume that the vast majority of the time, the person who’s doing the actual termination is not enjoying it – unless we’re talking about a completely miserable employee that no one liked and it’s toxic and they’re finally getting them out of there.

If someone’s been around even for six months to a year, there’s still going to be some sort of humane treatment or emotional connection possibly in doing the termination. Like some of them are saying, you have to draw that line between the two and kind of look at this from both a legal perspective, a risk management perspective. I think that’s always in the back of their head. There’s going to be just that they might feel bad about the situation because, you know, I’ll go back to that Bob Chapman quote, for the most part, no one really wants to see somebody lose their job. I think even someone who is a terrible employee, they’re still probably thinking, “Well, you know, at the end of the day, they’re going to be unemployed.” It’s not something someone necessarily wants to see. You know, it’s just a lot of different thoughts going through the head.

As we’ll talk later, this is all in the planning phase. I think, once you get to the actual termination, you know, it’s kind of different. I’m thinking it might be a different approach that some of them might take.

NASIR: It’s funny that you mentioned the employer being miserable or the employee being miserable. I wasn’t planning on playing this, but Patti actually addressed this, and I thought it was a pretty keen comment that – yeah, let me just play it.

PATTI: Sometimes, people stay too long because they just don’t know what to do, and they’re usually pretty miserable. If you as an employee are miserable, they’re probably pretty miserable, too.

NASIR: Right. If you are an employer that’s miserable with your employee, the employee is probably miserable, too. I think that’s a very, very true comment. It’s very rare. Really, it shouldn’t be that way. It’s very rare that the person should be surprised that the termination is occurring. If they are, then you’re probably doing it wrong, right?

MATT: Yeah. I mean, if it’s performance-based, then yes, I would agree with you. If it’s some sort of a mandatory downsizing or just financially, then I can see them being more surprised. But, yeah, if there’s a situation where it’s pretty much purely performance-based and the employee is surprised, that really shouldn’t be the case, I guess – unless they’re completely oblivious to everything in their surroundings.

NASIR: Right. Of course, our experts agree. This is what they have to say about whether it should be a surprise or not, and it shouldn’t be a surprise what they had to say.

ANITRA: You know, if we’ve made the decision to terminate, really, the ideal situation is that the employee isn’t going to be blindsided by it. There’s been some sort of a performance improvement plan, initially. If that plan hasn’t turned out successfully, then we’ve gone down the road of disciplinary action – you know, be that a written warning, final written – and really just having those ducks in a row. That way, when that meeting does take place, it still is going to be a difficult one, but again it’s something where it’s not a surprise to anyone that’s involved.

NASIR: That was Anitra. She also has plenty of years of experience in HR. She’s out of California. That was a big theme for her – preparation. Have you done what you needed to do to make sure that your employee isn’t blindsided by the termination? Of course, Patti had a similar goal.

PATTI: But, ultimately, you know, my personal goal is that, when that person gets to that point that it’s not a surprise to them.

NASIR: One thing, a big theme of our podcast – for those that have been listening for a while, and I know most of you have – is we talk about risk management when it comes to how expectations are not met and how the perceptions of each party, if there’s any difference between there, and the greater the difference, the more likely there’s going to be a dispute. And so, I think the point is that, if you’re done your job and you’ve communicated negative performance indicators to your employees, when it comes down to the actual conversation, by that time, it shouldn’t be a surprise because, if it is, the risk of there being a dispute just skyrockets. We talk about the terminating event is probably your biggest legal risk when it comes to your employees. It’s that moment in time.

MATT: Yeah. I think this is what you’re getting at here but, when I think of the planning perspective, I think of it in two different phases. One is the immediate planning – you know, right before the termination – the risk management aspect. “Is this going to subject us to a potential lawsuit? Wrongful termination, retaliation, et cetera.” But probably the more important one – and let me know if you disagree, Nasir – the more important one is the long-term planning before that, and I think that kind of ties into this shouldn’t be a surprise. It’s, if you’ do annual reviews or quarterly reviews, make sure to do that. Give them constructive feedback. If there’s some sort of performance issue, you need to sit down with them and talk to them and document that, so there’s a paper trail that can show, like, “Look, these are the times that I sat you down. There are performance issues here.” Like some of these professionals have said, it isn’t a surprise. You’ve been given all these different warnings. You’ve been given many opportunities and now it’s a time where we have to make the call.

NASIR: Right. I mean, that’s absolutely right.

By the way, I’m glad you made the distinction in the beginning of the episode between laying off and laying off because of downsizing versus terminating somebody because of performance, right? Perhaps we should make the distinction because a lot of this, when you’re laying off because of downsizing, it’s a much different kind of approach, right? But, for the most part, you know, absent this year in 2020, for the most part, most terminations I think that people have trouble with is those with performance.

MATT: Sure.

NASIR: Because, by its nature, it’s confrontational, right? It’s a lot easier to say, like, “Hey, look, business is slow. We lost X client or customers. Sales are down and we have to let people go.” Often, it’s more than one person or “we’re eliminating this position because we can’t afford it.” That conversation is just inherently easier.

MATT: Yeah.

NASIR: It just is.

MATT: Oh, yeah, no question.

You know, obviously every situation is different with every employer, but I think – well, putting this last year aside because that’s kind of an anomaly, but – you know, generally speaking, I think the employers – or at least the higher up ones – are going to have a feeling when there’s some financial issues with the company.

NASIR: Right.

MATT: I’m not going to say they see the writing on the wall, but it’s not going to be a complete surprise. But, you know, there are times, too – especially for the employees that might be lower on the totem pole and they’re just not even aware. You know, their job’s the same – no matter what – and they’re not even aware that there’s some sort of financial concerns or things like that.

NASIR: Right. Again, it’s part of communication. If you’re not communicating how the health of the business is doing and there’s a gradual decline over months. Then, all of a sudden, you have to make the decision to terminate and your employees are like, “Well, I thought we were doing well, you know?” That, of course, again, can cause issues, especially if they feel like, “Why am I being terminated and not this guy or this person?” Those are the issues that come up, of course.

MATT: That’s a whole other conversation. Three people in one department and you’re terminating one of the three and there’s a lot of legal considerations that go into that, but that’s a whole other – I don’t know if any of the people that we offered this spoke on that issue, but that’s a whole different realm.

NASIR: Right, and we’ve got to deal with that. It’s not as easy as people think. You know, it’s not just “Hey! Let’s pick the person that we feel like is the best fit.” It’s not as simple, especially if you’re doing a mass lay-off.

MATT: Yeah, exactly.

NASIR: But, nonetheless, I think a common theme – again, I have to go back to Patti. She had a lot of these kind of idioms, and you know how I like those kinds of sayings. She had this question to ask yourself before you terminate them. This is what she said.

PATTI: Everything that happens before termination is probably the most important thing which is, you know, giving them an opportunity to bring their skill sets up, coaching them, caring for them. You know, we have a saying here that is “have I earned the right to fire them?”

NASIR: Right. “Have I earned the right to fire them?” And so, I don’t know. I thought that was an interesting concept. I feel like it’s a good check. It may be a little too much. I don’t think, you know, just kind of getting a survey in my head of different clients and how they approach terminations because, you know, let’s just be real. I mean, business is business, right? You have to kind of go through some tough decisions as things go on but asking that question – have you earned the right? – really does have a lot to do with risk management. Again, it has to do with setting expectations and making sure there’s no surprise in these kinds of things.

MATT: Yes, that’s what I was trying to say before with kind of the two different phases, but she put that perfectly. I think that’s a good way to describe what every HR person should be thinking before they make the decision to actually terminate.

NASIR: Right. Let’s talk about preparation.

They’ve all said you have to prepare. Okay. What exactly are you preparing?

PATTI: One of the biggest challenges HR leaders have is the manager will come and they’ll say, “Well, time to fire John.” Okay. Time to fire – what does that mean? What have you done? And then, I’ll pull the file and the performance management will be scores across the board – great scores, whatever. And then, I’m like, “Okay. There’s no documentation.” From a legal standpoint, that’s probably one of the biggest things that happens – that has to really be buttoned up before you go into a termination process.

NASIR: And this is what Anitra said.

ANITRA: Again, if you’re seeing a problem arise, first having a very transparent and candid conversation with that individual about what is not working and starting to approach it from a coaching perspective because, a lot of times, you know, we’ll get to that termination and the employee didn’t realize or wasn’t aware. Again, that’s worst-case scenario, of course. But, you know, really, it’s starting there and, sometimes, that’s being able to avoid that termination. But, other than that, I always go back to the best practice of just document, document, document. You know, that’s really a good way to cover bases and, again, ensure that employer as well as employee are very aware of what the expectations are, what’s not being met, and what needs to happen as far as next steps.

NASIR: Document, document, document. On one hand, it should be – in theory – enough that you’re communicating with your employees about their performance on a regular basis and giving feedback. Be direct in these kinds of things, but having those conversations are not enough. You have to document those conversations. Tadessa went through a kind of list what those can entail.

TADESSA: All correspondence regarding coaching, performance evaluations, records of counselling, performance improvement plans, and any correspondence that management had with the employee regarding their performance that led up to their termination.

MATT: Yeah, the way I look at it or approach it is you basically have to assume that there’s going to be a lawsuit that surfaces as a result. You know, realistically, most of the time, there isn’t, but you have to have that planning, that documentation to think that’s going to happen. That’s kind of the way I look at it at least.

NASIR: Absolutely. Let’s just speak plainly – especially in California. I’ll tell you; it is such a different world. The employment law protections in California versus Texas – and other states for that matter – are just completely different. In fact, Amr – an attorney in California – has practiced employment law. Let’s hear his perspective on this.

AMR: Sure. I mean, it’s always obviously important to have all your paperwork lined up. Here in California, obviously, there’s very strict laws that protect employees, so those obviously have to be checked. Make sure that you’re abiding by them and making sure, for example, you’re paying them in accordance with California law when a termination occurs. When you know that the termination is going to occur, you have to pay them on the day of the termination. There are certain documents that are required, so making sure all those things are in order. As an employer, you want to make sure you’re addressing issues of employee morale. You know, it could be someone who is well-liked in the office but t their performance wasn’t up to snuff for whatever reason, so you want to be able to directly address employee morale and not necessarily sweep things under the rug because people can talk, and it could create negative and toxic situations sometimes.

MATT: Yeah. I mean, he’s exactly right. It’s not just the actual thinking through the process. I guess maybe in having dealt with this issue many times, I think some of the newer or less seasoned HR people, their concern going into the actual termination day or event is basically, “What am I going to say?” They almost even want to write out what they want to say sometimes because they’re so concerned about things, but you have to have the procedural aspects in as well. I mean, like Amr was saying, they have to be paid essentially immediately – both wages, you know, last paycheck and vacation pay and things to that effect – certain things that need to be documented. There’s a whole laundry list of items that need to be taken care of. It’s not just you do the termination and that’s it. There’s more that goes into it – both before and after.

NASIR: Right, and it varies by state.

MATT: That was speaking to California, yes, specifically. But, yes, you’re right.

NASIR: Yes, it varies by state and federal law, of course. There will be things about COBRA insurance. I think Amr mentioned final paycheck. That’s pretty big in California. In Texas, there are some timing requirements, but the penalties aren’t as strict compared to California. I mean, I don’t know.

I personally don’t like a script because, again, you have to remember you’re talking to a real person and having a conversation. For example, Patti was a proponent of that, and I kind of get that, from an HR perspective, it’s like, “Look, not everyone can play off the cuff like that. They do have to have some kind of outline or script.” Let me see if I can find that clip. This is what she said.

MATT: Well, before that, I’m not a fan of it, and the reason is it’s going to go off-script. This isn’t a sales call where a salesman has a whole list of questions that are going to be asked or how to respond if somebody says no. You’re not going to be able to fully prepare every single response to any question or statement that the employee is making, so the reason I’m not a big fan of it is, you know, they go off-script and the person that’s doing the termination might kind of get flustered or not know what to say. I guess some people might need it, but I’m just not a fan because you might run into territory where you say something you shouldn’t, or you didn’t want to disclose just because you feel like you need to say something in response. I’m more of the opinion of just have the general things that you need to address and kind of keep it contained within those items no matter what the employee says back.

NASIR: Well, Patti is not here to defend herself, but let’s see what she has to say.

MATT: I’ll see.

NASIR: Let’s listen.

PATTI: We keep a script. You know, we try to do that from a legal perspective, but I would say that it’s kind of a finesse where you have to know how to say things where it can be encouraging and heartfelt and kind without putting yourself at risk.

NASIR: She kind of said something to the effect. It almost seems she was saying – again, she’s not here, so I don’t want to put words in her mouth, but – we have a script for what she says are legal purposes, but you require finesse. It seems like it’s something similar to what you’re saying. It’s like, “Hey, even if you have a script, it’s going to go off-script, and you still have to be ready to adapt to that.”

MATT: I haven’t seen her script. I think – from what I gathered, at least – it’s sort of the approach is, on the back end, she wants to make sure that or whoever is dealing with this wants to make sure that they say these uplifting or positive things at the end or whatever that is, and they just want to make sure that those items are addressed. It’s like the compliment sandwich approach where you say something nice and the bad things are in middle and then the end is more something positive. That’s what I gather from that. I could just be completely misreading it, but you’re right, too. She also said there is some finesse to it. It’s not like you’re a robot and you have to just, you know, say the exact things no matter what they say back.

NASIR: All I heard was “sandwich” and “robot” and I was very interested. Once again, I think that’s actually a very astute observation. I think I’ve heard the sandwich analogy before, but I think that’s right on. Like, if you give those general guidelines and fit into there, like I said, now that I think about it, I’ve had – I don’t know how many times we’ve had conversations where our client is like, “Okay. I need to terminate this person. What should l say?” It’s like, “Okay. Well, where do I start with that question?” What they’re asking for are some guidelines – that script, that outline to go through.

Risk management – now, three of these people are HR professionals. We’re obviously attorneys and the fourth person we interviewed is an attorney. When do you contact HR and when do you contact an attorney?

MATT: Well, my inclination is to say, for the HR, sooner rather than later. I guess as soon as possible is my answer for both. It’s never too early. I mean, I guess there’s even a situation where – wait, are you asking they’re definitely going to terminate the employee at this point or they’re considering it? I guess, either way, my answer is the same. They both need to be contacted – HR and the attorney – as soon as possible.

NASIR: Right. By the way, now that I think about it, not everyone has HR, right?

MATT: Right.

NASIR: But everyone should have some resource of a human resource person to go to when they need it. I think, for me, again, it kind of depends on the experience of the HR professional that you’re using and also the size of the organization because, if you have an in-house HR department, going to an attorney every single time probably doesn’t make sense. But, if you’re a little bit smaller, perhaps it does. I think going to a counsel, I think you should reserve that to high-risk situations. I don’t know. I think it depends because, I mean, there’s a cost to that.

MATT: Yeah, I don’t disagree with that. It’s just we’re trying to answer a question of every scenario. Yeah, I mean, I agree with what you just said. But, yeah, you know, if it’s a smaller company or there’s no HR person or obviously – like you said – if it’s high-risk or a higher-up person then, sure, to the attorney and just plan for it. If it’s a big company where terminations are pretty frequent and it’s just a person who wasn’t performing and they know it, you don’t even really need to involve the attorney at that point if you do have an HR person that’s seasoned enough to handle it correctly.

NASIR: Right. I would say – no offense to the HR professionals, whether they’re the ones that we spoke to or anyone else, but – when it comes to the high-risk situations, and I’ll tell you the most typical high-risk situation, you have a person that you need to terminate because they’re a bad employee and they’re underperforming, but there’s no documentation, there’s been positive reviews, if any, in previous performance reviews, and unfortunately the timing is such where the employee had some kind of event which makes it even more high-risk – like, they suffered a certain disability or they filed a complaint against the employer or some incident within the office – on one hand, you need to terminate them because they’re not a good employee and you can’t afford to keep them on. But, on the other hand, because of the lack of documentation, what’s happened is they’re going to think that you’re terminating them for an unlawful reason. Even if it’s not an unlawful reason, they’re going to think that. What do you do? It’s not an easy situation.

MATT: Yeah, no question. We’ve dealt with that before. It’s basically what’s going to be the path of least resistance in those scenarios because you’re not going to have a perfect solution there.

NASIR: Right. There’s this other side. HR though is incredibly important, especially the in-house, because any time we get involved, we’re also working with HR. They’re going to be the ones. It happens, but we’re very rarely in the room in a termination event as attorneys – unless it’s a high-level employee or something to that effect. Usually, it’s the HR professional, and it’s usually the HR professional of the client that’s reaching out to us because of some high-risk situation.

A good question that we asked some of our guests were “what is the role of HR?” because I think there’s a lot of myths about what exactly their role is. I thought Tadessa had a really good answer. Again, she’s out of Texas.

TADESSA: We do want to obviously protect our company in the event of terminations. Also, act in the best interest of employees as well. Obviously, HR, the nature of the business is always duplicitous. You know, we work for the company and we also advocate for the employee.

NASIR: Yeah. I mean, it seems like, honestly, I think that’s one of the best answers which may be surprising to some because there is some vagueness to it, but that’s truly the case. An HR department or HR professional, they’re that connection between so-called management and the employee where, if an employee has an issue, they can go to HR. But, at the same time, HR is there to protect the company, so it ends up being in the company’s benefit to have a culture where people feel comfortable to go to HR. We all know the reputation that HR departments can have. Either you’ll have the very strict kind of HR department where it’s almost as if you don’t even want to talk to them because all they are is paper-pushers and going through red tape. And then, you have the other side of the fence where they’re not looking out for the employer and they’re just this advocate for the employee which can also be dangerous. It’s really a balance.

MATT: Yeah, and everything you said and what she said was exactly right, too. Just going back a little bit though, the HR versus attorney, to generalize, I think the HR person is going to be a lot less cold than the attorney would be in a situation like this. That’s why you see them handling it. I mean, maybe it’s just you and me. From what I’ve heard of Amr, it’s probably the same. We keep it very – I don’t want to say “cold” necessarily, but – it’s very straightforward and to the point and no emotional ties mostly because we don’t have those same relationships as someone within the company might, but that’s what you’re going to get with an attorney, I assume, for the most part.

NASIR: You’re right, but we have the luxury to do that. We have the luxury to be like, “Well, look, if you fire this person, here are the risks…” or “Look, this is an at-will employment. You have every right to terminate this employee, so you can terminate them, and you should do it. There’s no reason you should not do it.” But, in a way, we’re kind of speaking out from a distance. You know, that can have its advantages and disadvantages in the sense that, on one hand, we’re looking, as an outsider, a lot more clearly. But, on the other hand, we’re also not on the ground to be able to understand some of the nuances of particular employees.

MATT: Exactly right.

NASIR: We try to make up for that. A lot of the times, we ask questions. These are important questions that your lawyer should be asking you. What is the personality? A common question that I ask is, if you were to terminate them today, would they be surprised? That’s one of my go-to questions. Often, the clients will give pause, and I feel like, the longer they pause, the more nervous I get because the answer should be, as we talked about in the beginning of the episode, the answer should be no. They should not be surprised. Or, well, they’re not expecting it – and this is a common answer, and I think a good answer – they may be surprised at first, but not secondarily. Like, when they actually start packing their stuff and going home and talking to their family, they understand. They get it. That’s probably the goal. I mean, if they actually know that they’re going to be fired and it’s not a surprise at all, that’s probably rare.

MATT: Again, I agree with that.

NASIR: Let’s talk, Matt, about the actual termination. Throughout this entire episode so far, we’ve been talking about preparation which, by the way, is exactly how our HR employment law guest also handled it. They spent very little time – and, by the way, these are obviously long interviews that were cut down and we’re playing clips, but – they spend very little time on the actual sitting down and terminating the person. Why is that? Well, because first of all, that moment is just a moment. The way to handle this is all in the preparation. We talked about the preparing of documentation, understanding why you’re terminating them, risk management and evaluating that and so forth, but what about the actual termination?

MATT: Well, I think I was touching on this earlier, the way I think about it – and I think you’ll get this analogy because you’re from Ohio, from Indiana.

NASIR: I am.

MATT: Well, as some people might know, there are a lot of amusement parks in the Midwest, but there’s one in particular in Cedar Point in Ohio which – I can’t remember the name of it, I don’t know if it’s still even there – at the time, when I went, it was the highest rollercoaster in the US, but you get in and it’s this very, very slow climb all the way up. It takes forever. I think it was 420 feet and then it drops you straight down which is five seconds or whatever it is. That’s how I look at this. It’s all that time spent planning, and the actual termination is just that quick drop, and that’s how it should be.

NASIR: No, that’s true. Who was it? I think it was Patti that used this analogy. One second.

PATTI: I do work with my hiring manager because we usually do it in teams of two – myself and the manager. You know, I share with him, less is kind of more. You know, you want to pull the band-aid off right away. You do want to say, “Look, this is a serious meeting.”

NASIR: Pull the band-aid off right away. That’s just how you do it. Again, we’ve had these conversations. Even employers that are very compassionate and close, there’s a want to sit down and kind of ease into it and even taking them out for lunch or something like that. It’s kind of this transition. One thing that I always say is like, “Look, don’t confuse what you think is best for you versus what’s best for them.” Some of that is like your slow ease into it oftentimes is your coping mechanism rather than theirs because you really need to get to the point and make it simple. There’s a lot of reasons for that, but I’ll tell you – Matt, I’m sure you may have a different perspective, too – one practical aspect of this is that, when it comes to having conversations about why they’re terminating and so forth. I think even our guests had different perspectives on this.

Personally it’s not usually appropriate to go into details as to the why. Some HR people say, “You don’t even need to talk about anything why.” It’s like, “Hey. You are terminated.” Other people, “No, it’s okay. You have to talk about this.” I’m of the opinion that, at the termination event, there’s no reason to go into too much detail about the why because that can be done later. If you are concerned about their well-being because it’s going to be hard news for them to take it, trust me, no matter what you say, it’s going to be hard news. But one thing that you can actually do to actually give a positive effect is, after you terminate them, you can reach out to them. If you have that relationship, you can ask them out to coffee or to lunch or a separate meeting to have that kind of closure that maybe you’re seeking that may be helpful to that person, too.

MATT: Yeah.

NASIR: Again, you pick a thousand HR people, more than half will probably disagree with me, but that’s my perspective.

MATT: All right. I have a lot of things to say. Hopefully, I can remember all of them.

Yeah, I completely agree with you. In part because, like we’ve said a bunch of times, and like the professionals have said, it shouldn’t be a surprise. I agree with you in that sense. Also, keeping it short, in my opinion, nothing good can happen once that door is opened and there’s a more detailed discussion about it. Best case scenario, you say everything perfectly, and the employee doesn’t have any more information. To me, it just seems likely that something is going to slip out. If they want to take some sort of legal action, it’s just some ammunition they can use moving forward. I agree – keep it short.

The other thing too is I’m sure our professionals have encountered this. You’re going to get employees that are going to fight to try to keep their job. Some are just going to accept it, but the others? There’s definitely going to be others that are going to just try to justify. This is part of the reason you don’t want to go into too much detail or much detail at all. They’re going to argue against what you’re saying or they’re going to justify that this isn’t the case. “Actually, I did A, B, and C.” Again, to me, there’s just nothing good that can come of going to too much detail for all those reasons.

NASIR: Right. I’ll tell you – even the so-called “best” terminations I’ve overheard still result in “give me a second chance, I have family, I have kids” and these kinds of things. We said it at the beginning. This is not fun stuff. It’s hard but keeping it simple and kind of coming up with the mantra of “this is our decision – to let you go” and kind of repeating that as they kind of go back and forth – you know, “can you explain why?” and “can you explain this?” and you can give some general details but, again, I go, “I’m happy to go through those details with you, but this decision has been made and I’m happy to discuss that at another time” because they need to be given the message that this is a final decision. This is not something of a negotiation.

MATT: Yeah.

NASIR: It just makes it easier. I always tell people – actually, I got this from my brother, and I adopted it – if there’s bad news, tell me right away. Good news, I can wait for. If I found out that you had bad news and you delayed it, that’s more frustrating. I think there’s some psychology to that.

MATT: That’s a Michael Scott move. He would definitely just act like nothing bad is happening at all and then at the end go, “Oh, also, I have to fire you.”

NASIR: Oh, yeah.

MATT: One quick thing that Patti mentioned that we haven’t mentioned at all yet which is sage advice. We always do it in teams of two. We always recommend to always have a second person in the room on the employer’s side which we haven’t mentioned at all yet.

NASIR: Good point. Again, it’s just unfortunate – the world we live in. you have to have a witness. When it comes to litigations surrounding an unlawful termination, the actual employment or the actual termination event, I mean, that conversation that occurs during termination is always, you know, exhibit one – whatever is said in there. There are a couple of things that happen when you have someone else in the room. It’s about people having a certain decorum. This is a professional meeting. Both the person doing the termination and the person being terminated, I think, feel it’s just different. You know, you can’t have the same conversation, especially if you’re close with that employee. It’s more of the reason, right? You have that person in the room and it kind of puts things in perspective. Then, of course, if it’s an HR professional, they’ve gone through that experience and can help the process.

MATT: Yeah, and I also think, from the employee’s perspective, let’s say there’s this meeting that gets set with them, they walk in and they see the person they’re expecting to meet with and somebody else – it can vary on who the person is. I think, right then and there, for the most part, they probably understand what’s about to happen, if they don’t already.

NASIR: Oh, I know. It’s like, you walk in and so and so from HR is here. Obviously, I know what’s next, absolutely.

MATT: Yes, something.

NASIR: “Am I getting a promotion?” Yeah, that’s definitely true. I can’t remember which one of our guests said this – and, of course, I can’t find the clip – but there was a discussion about, you know, after the termination is done, don’t follow them to their desk. Don’t watch them leave – unless there’s a real concern, you know? But, oftentimes, there’s not. Offer things like, “Hey, you know, if you want to meet me at a coffee shop, I can get you your stuff. If you want to come after-hours, I can meet you to pick up your stuff and pack up your things,” and these kinds of things. You really have to treat these people with dignity and respect. Part of that is doing it in person.

One thing I wanted to talk about is how COVID-19 has affected that kind of respect that you would want to give to an employee that you don’t want to do it over the phone or over Zoom if you don’t have to. But, these days, sometimes you’re forced to do so.

MATT: Yeah. I mean, I think that most would prefer to at least give the employee the respect of a face-to-face meeting. I mean, it’s not doable right now. I guess it depends on the company but, for the most part, it’s just not feasible.

NASIR: Right, and the state and what’s going on right now.

MATT: Yeah.

NASIR: We did ask how COVID changed the termination and how to terminate. Did it change at all? This is what some of our guests said.

AMR: I don’t know if it’s necessarily changed, but it does pose some logistical issues.

PATTI: To me, the termination process really hasn’t changed except for the fact that there has to be higher empathy.

NASIR: Yeah. Patti said that and I think Tadessa said something different or along the same lines that the relationship between employers and employees have changed.

TADESSA: I think that the pandemic had a significant impact on the entire employment to relationship with employees.

NASIR: Yeah. I mean, how do you give those performance evaluations? We talk about immediate feedback. You don’t want to have a performance evaluation on something of a mistake that an employee did a month ago, right? If there was a mistake that occurred, you should address it directly and right away. If they’re not in the office, it’s not as easy to do that in an effective manner because – what are you doing? – you’re either sending them an email or a message or getting on Zoom. We know, it’s just different, right?

MATT: Yeah, that’s a good point.

NASIR: But these in-person versus virtual terminations are another thing altogether, and I think we’ve talked about it in the last COVID episode that it seems like a lot of the terminations in California have been pretty much all virtual this last six months whereas, I think, in other states like Texas, we’ve had the luxury, convenience, or whatever you want to say to do these things in person.

MATT: Yeah. To me, it makes it both easier and more difficult. I would think, from the HR person’s perspective or whoever is doing the termination, it’s easier in the sense that they don’t have to be in the same room with the person. But, also, more difficult, I guess, for the same reason because – and maybe it’s just me, but – it’s difficult. I mean, what do they say? 70 percent of communication is non-verbal and you can still get some with Zoom, but you’re not going to get the full 70 percent. There’s just going to be things that are missing and, just from a technological perspective, you know, there’s bad internet or delays. It’s just not the same as being in person. Maybe it’s about the same because it’s both easier and more difficult, but there are some challenges, for sure.

NASIR: Yeah, the impact of the pandemic is definitely there besides the fact that there’s been a ton of lay-offs and terminations that employers had to go through. Unfortunately, as of right now, the numbers continue to grow – the number of unemployed. Maybe in six months or so, Matt, you and I can talk about how to hire an employee instead of terminating an employee but, really, this is what’s going on right now.

MATT: Yeah, it’s the reality. I think it does make things, if there’s any silver linings to what’s happened, it does make things a little bit easier because, speaking specifically just to having to terminate someone because it’s at least some justification – not justification, but it might ease the burden of it just a little bit just because there’s something else that the employer can lean on, but I don’t know if that really changes things too much. I’m trying to find the silver lining here.

NASIR: Actually, it’s a good point. I mean, COVID-19 has made it easier to go through that process because, again, people understand. It has to do with that it’s not being a surprise. If you’re a restaurant in COVID-19, the fact that you’re not being terminated would be a surprise for many people.

MATT: Yeah, good point.

NASIR: There has been a tick-up of some employment litigation. Again, like, it has to do with, you know, if you’re laying off your workforce, like, “Why me and not the other person?” that kind of thing, but nothing too unusual for what we can expect for these times.

MATT: Yeah, you’re right.

NASIR: Well, all right. The last episode, if you haven’t heard it, it’s awesome, frankly. On COVID. We kind of went through that. That was a little depressing, but I would say that talking about terminating employees is almost equally – if not more – depressing. But, hopefully, it’s still some take-home tips for that. Of course, you know, by the way, Matt, we should thank our sponsor.

MATT: Oh, we still have the sponsor? They stuck around?

NASIR: They did. They renewed for one more episode provided that we actually mention their name. I don’t even know if last time we did or not, but they did pay.

MATT: A one-episode contract. Yeah, let me see. Let me look. Okay. Here it is – Pasha Law PC. It’s a business corporate law firm practicing in California, Texas, New York, and Illinois.

NASIR: Very good. And so, of course, they can help with your employment issues, specifically if you want to terminate your workforce. By the way, I’m still interested in bringing someone in to terminate live. If any of you guys want to volunteer with that, if you have an employee that you want to terminate, we can just have them call into the podcast and we’ll do it for you. It’s kind of an extra service for listening. I think that’s a good idea.

MATT: I don’t know if we want to advertise that.

NASIR: Do you think that fits in line with the tidbits like being compassionate and these kinds of things?

MATT: Yeah, publishing their termination for anyone to download? Yeah, I think that fits into the passionate and humane advice that some of them gave.

NASIR: Exactly. Well, either way, hopefully those were some good tips. Don’t forget to follow us on all of our social media and check out our website. We have so much more information on tips from everything about running your business – from A to Z – starting your business or even closing your business, frankly. We have literally hundreds of episodes of the podcast to also listen in to some of these subjects, so please listen, leave positive reviews. If you have any questions or comments, also feel free to reach out to us as well.

MATT: Yeah. As always, keep it sound and keep it smart.

NASIR: Thank you.

Employment Law Page


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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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Latest Episodes

November 21, 2023

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

July 12, 2023

In this episode, Attorney Nasir Pasha and Attorney Matt Staub delve deep into the complexities of mass layoffs and offer valuable insights, real-life examples, and practical advice to employers grappling with the aftermath of such challenging situations. Nasir and Matt emphasize the critical importance of effective communication when executing mass layoffs. They stress the need…

January 9, 2023

As the COVID-19 pandemic swept across the globe, businesses scrambled to adapt to the new reality it presented. In this blog post, we dive into the case of Goldman Sachs, a financial services giant, to examine their response to the crisis and the lessons other businesses can learn from their return-to-office strategy. From prioritizing employee…

October 28, 2022

Full Podcast Transcript NASIR: Finally, my two favorite worlds have collided – both the law and the chess – right here at Memorial Park in Houston, Texas. Windy day. We have some background noise – ambient noise. What are the two worlds that collided? Well, Hans Neimann has sued Magnus Carlsen for defamation in one…

September 26, 2022

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

July 7, 2022

Whether you are buying or selling a business, the transaction goes through the same steps. However, they are viewed from different perspectives. Sellers may not want to fully disclose all the blind spots while Buyers will want otherwise. Nasir and Matt battle it out in this Buyer vs. Seller to determine who has the advantage!…

May 12, 2022

When it comes to Restrictive Covenants, employers are fighting to keep their company safe while employees may use them to their advantage. Keep listening to find out if the Employer or the Employee wins this battle. Round 1: Trade Secrets A company’s trade secrets encompass a whole range of information and are one of the…

February 14, 2022

The Supreme Court rejected the nation’s vaccine mandate. Businesses with 100 or more employees are NOT required to have their employees vaccinated or go through weekly testings. However, this policy remains in effect for health care facilities. In this episode of Legally Sound | Smart Business, the team sat down to discuss their thoughts on this ruling.

December 1, 2021

In this episode of Legally Sound | Smart Business by Pasha Law PC, Nasir and Matt cover the Business of Healthcare. There is more to the healthcare industry than just doctors and nurses. Many Americans have health insurance to cover their yearly needs, but most Americans are not aware of what really goes on behind…

October 12, 2021

In our latest episode, Nasir and Matt are covering the legal issues on Social Media. The average person spends most of their day on social media, whether they are scrolling for hours or publishing their own content. However, just because you publish your own content on Instagram does not equate to you owning that image….

September 28, 2021

What is a Non-Disclosure Agreement, and when do I need one? In this episode, Nasir and Matt shares why you need to use Non-Disclosure Agreements, basic facts about NDA’s, and discuss about the infamous Jenner-Woods story. Having the right Non-Disclosure Agreement in place not only protects you and your business, but it also makes the…

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

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