How to Fire a Troublesome Worker Without Getting Burned

Susan is the supervisor for “Tony the Trouble-Maker.”  Although Tony used to be the top producer in the division, lately he has been rude to Susan, fights with his coworkers, and refuses to take responsibility when something goes wrong under his watch.  Susan is struggling to keep her unit in the black and this guy is weighing down the whole area.  She is now ready to terminate Tony’s employment.  However, Susan seems to recall Tony once boasted about how he successfully sued his former employer for “tons of dough.”  Susan is concerned if she terminates Tony, he will file a lawsuit for wrongful termination, and Susan doesn’t exactly relish the unnecessary cost or distraction.  How can Susan reduce the likelihood of post-employment litigation?

Susan should offer Tony an additional severance pay amount in exchange for a signed release and waiver.  In theory, this is a simple transaction.  Tony will receive additional money beyond his final wages so long as he signs a document in which he agrees not to sue the company for claims including wrongful termination, discrimination, harassment, retaliation, or breach of contract.

However, there are several pitfalls to this arrangement of which Susan must be aware in order to ensure the applicable state agency (such as the California Department of Fair Employment and Housing) or federal agency (Equal Employment Opportunity Commission) will honor such a waiver.  For example, if Susan’s company has at least twenty employees and Tony is age 40 or over, Susan must notify Tony that (1) he has up to 21 days to consider and sign the waiver after which time the company will withdraw the severance pay offer; and (2) he has another seven days to change his mind and rescind the agreement.

Handled correctly, we have found the great majority of departing workers will agree to such a severance package.  Indeed, most don’t bother waiting for any part of the 21 day offer period to expire, instead signing and taking the severance check upon receiving and promptly reviewing the papers.

Our severance pay forms package includes a five-page overview of exact steps to take, two separate types of severance agreements and two corresponding checklists for the departing employee to initial and sign.  By ensuring all these forms are properly understood and implemented, a company can take effective steps to prevent frivolous wrongful termination suits where the company judges it best to promote a worker’s smooth transition to other employment.

If you have any questions, please contact me or any of our other employment law attorneys.   Best, Cindy Bamforth

June 30, 2010