March-April 2017

Making terminations as painless as possible

Randall Sims

District Attorney in Armstrong and Potter Counties

Terminations, discharges, or firings (whatever you choose to call them) are one of those necessary difficulties in being the boss. I hate having to terminate someone. You probably do also. The reality is that at some point, you will have an employee who will not give you any other choice. I recently read that the No. 1 reason why poor-performing employees keep their jobs is their employers’ failure to know how to terminate someone. My hope is that this article gives y’all insight into how our office handles employee discipline and offers some direction for undertaking the difficult task of firing an employee.

An extended family
I am proud of the staff of the 47th District Attorney’s Office—that’s my office. We take our jobs very seriously. We call each other by our first names, and we help each other both inside the office and out. We are a team! If one succeeds, we have all succeeded. If one drops the ball, we all have dropped it. Everyone helps with whatever needs to be done, including me. All of my employees have completely bought into that concept. Those who do not generally do not last long. We are an extended family.  
    Why am I telling you this? Because one of the most important reasons to address poor-performing employees is to maintain the health of the entire office. Your staff knows exactly who the poor performers are and what they are doing (or not doing). Each month in our office, for example, we send out a disposition list to show what cases have moved through the system, and believe me, you do not want to be the one who moved the fewest cases. That means everyone in the office knows who is putting forth their best efforts, as well as who is not. Bad employees are a cancer in the office, and that cancer will spread quickly if not treated. Employees are not only watching their peers, but they are also watching the supervisors to see how people in charge treat the cancer. If nothing happens to the poor employee, other employees will get this cancer. The more who succumb, the worse the morale of the office will get.
    Some of you may be thinking, “Wait—Texas is an ‘employee at-will state.’ I don’t need to know all this. I can fire anyone at any time and do not even need a reason.” If that is how you choose to handle discharges, then you have just thrown away one important protection should a worker file a lawsuit claiming his termination was illegal. When you discharge someone for a solid reason and have proper documentation to back up that reason, you are in a much better position to defend your firing decision in court than going in there with no documentation.
    There are right ways to handle terminations and many ways to mess them up. Fortunately, I have access to a great Human Resources Department here in Potter County. From those folks, I have learned much. There are also private vendors that hold classes on being a supervisor and related topics, and TDCAA is putting the final touches on its own management training aimed at prosecutor-office supervisors. Utilize these assets where they are available. Doing so can save you and your county from a lawsuit.

Protected classes and activities
First of all, do not terminate someone for reasons that will absolutely prompt a suit in federal or state court. None of these things should be any part of the reason for a discharge: age, marital status, race, gender, pregnancy status, request for Family and Medical Leave Act (FMLA) leave, sexual orientation, disability, religion, national origin, or protected activities, such as whistle-blowing or complaints of discrimination or harassment. If you ignore this rule, you will end up in federal or state court. That is going make Momma so disappointed, and the press is going to eat you alive.

Documentation and discipline policies
One of the biggest mistakes that employers make is failure to properly document all the reasons that led up to the termination. Document, document, document! If there is no documentation, then it did not happen. (Document employees’ actions for all the same reasons you require law enforcement officers and agencies to document their actions.) I put documentation first because it is your best friend if you do it correctly; however, it will be your worst enemy if you do not.
    If you do not have a policy governing progressive discipline or corrective action, step one is to adopt one pronto. Having a policy will help you should litigation arise over a termination. Also, be sure to create a form that you will use as documentation of any problems with an employee and that will give notice to that employee. (A copy of the form we use is below.) At a bare minimum, these forms should identify the employee, his position, downfalls, corrective actions, and spots for the employee and supervisor to sign off. Because my employees are Potter County employees, we use the Potter County Employment Manual.
    Once you have a policy and forms, they will help you only if you use them. Move employees through the steps of the process as necessary. Either they will correct their performance or behavior, or you will move them on down the road toward their last day. (More on that later.) If you do not stick with your own policy, expect an employment attorney in court to repeatedly bring to the attention of the fact-finder your “failure to follow your own policy”—“why should you expect your employees to follow it when you do not?”
    Remember that consistency in the decisions you make, how you treat each type of issue, and how you treat each employee is absolutely critical. If you do not discipline one person for an infraction, do not discipline anyone else for it. If you do discipline someone for an issue, discipline everyone who has the same issue. Do not handle an issue one way with this employee and the same issue in another way with a different employee. Deviating from this advice gives you a good chance of winding up in court to defend your actions, so be prepared.

An office’s “insiders”
In my office, I have a first assistant district attorney, chief investigator, and office administrator. Each supervises his or her respective employees. They do not have hiring and firing powers, but they are vital to this process. Upon realizing there is an employee problem, the four of us have a meeting. You will need to decide who in your office should be part of your group. In a smaller office, you may be the only one.
    These “insiders” discuss the employee and the problems and determine how to respond. The more severe the problem, the more severe the response will be. Here’s an example. We have an office policy requiring that prosecutors interview all prospective State’s witnesses, preferably before the trial starts but absolutely before they call the witness to the stand. Failure to perform that duty is a “brown box” offense (meaning, it’ll earn you a brown banker’s box so you can pack up all of your personal belongings from the office). You are gone. There are no excuses.
    Less severe problems, such as tardiness, begin a “step” process that starts with an informal counseling session and progresses to written warnings and finally a decision to retain or terminate. At any point in the process, you could jump to the step further down the road or even straight to termination.

First meeting
When an employee fails to meet your expectations, after discussions with your insiders, it is time for a meeting with that employee as soon as possible. I suggest the employee’s supervisor have a verbal counselling session with the employee to clarify any problem areas. Again, make the expectations clear, measurable, and with expected timelines. You might even have the employee verbalize his understanding of your expectations to make sure what he believes you want aligns with what you actually want.
    You need to document these informal, verbal meetings. We do this in an email to the employee confirming the details of the meeting (when and where) along with a description of the conversation. Make sure that the description outlines what necessitated the meeting and the corrective actions. Be sure to place a copy of that email in the employee’s personnel file.
    It is essential that you enforce any sanctions you have set for the employee if his poor behavior continues. You really have no alternative but to do what you said you would do if poor performance or a violation of office policies continues. Failure to follow through on this end could result in losing your power to control all of your employees.  

Future meetings
Upon recognition that the employee is still having issues after an informal meeting, the next step is to go to a more formal process. Or, if infractions are more serious, this step may be your starting place.
    Make the insiders aware of what happened with the employee. This group should meet to determinate what actions to take. Take notes at this meeting regarding the employee’s problems and the corrective actions, and one of you should fill out a Record/Notice of Corrective Action form. (If you don’t have your own such form, you can download ours below.) Decide which of you will discuss it directly with the employee. I suggest two staff members be present from this step forward so there’s always more than one witness to any conversations. Meet with the employee and cover all appropriate matters, then have both the employee and his supervisor sign off on the corrective action form. We provide a copy of the form to the employee and place the original in the employee’s personnel file.

Retain or terminate?
You might reach the point when you wonder, “Is this employee worth keeping?” When that day comes, gets your insiders together to assess whether this employee should remain under your employment. The insiders should carefully measure the employee’s issues regarding non-compliance with policies and poor performance. You can easily accomplish that by reviewing all the documentation in the employee’s personnel file. (Isn’t documentation a great thing?)
    A decision to retain means keeping that employee in the pipeline in the hopes that he will make the necessary adaptations. A determination to terminate means, you guessed it, possibly more documentation. Once you’ve decided to terminate an employee, I strongly suggest you create a timeline detailing all the necessary actions that have preceded that termination.
    Begin that timeline with the personnel file: Does it contain everything you need to prove the reasons for discharge? Has everything that has happened been consistent with the office’s practices and policies? Look closely, as some practices may not actually follow official policies. If that is happening, correct them by making them consistent immediately.
    Fully discuss your intention to discharge the employee with Human Resources, and run it past the attorney in your jurisdiction who is responsible for advising and defending the county (because that is where this matter could end up). If that person is you, seek counsel from one of your peers in another county. These people will be objective about their answers and the situation, whereas you may not be as someone in the fray. Show them all of your documentation regarding the employee’s failures and your attempts to correct them and ask, “Do you feel comfortable defending this termination?” Listen to their answers and if your counselors raise concerns, clean up those issues before proceeding.
    To give you an example of when someone else’s advice saved the day, I’ll tell you about an incident where I was ready to terminate an employee. I talked to HR and then the attorney who represents the county, and as we were discussing it, I got fired up—not at them, but at the circumstances. (I confess that I can get boiling-over mad when an employee forces me into firing him. I promise that it takes a whole lot to get me to that point, but I can indeed get there.) Both the HR rep and the county attorney expressed reluctance to terminate this employee, and I went home that night dreading keeping this employee on staff.
    That evening, long after the flames of my anger had gone out, I was going over the afternoon’s conversation—but with a calmer head. That’s when I realized that I hadn’t told them about the final warning my first assistant and I had given the employee earlier. We had documented it, but I had forgotten to tell them during our meeting. The next morning, I shared that information with HR and the county attorney, and both agreed that termination was totally justified. (Documentation is a wonderful thing!) And I was glad to have talked through my decision with two outside parties.
    Once you have gotten that step out of the way, you are ready to take the final steps. You and HR should prepare all the documents you will need for the discharge, including those about job performance, such as work reviews and warnings. Someone else, usually an HR staffer, will need to discuss with the employee his benefits and final paycheck.
    Once you have everything together, meet with your insiders to go over the details of the final meeting with the employee. We never move forward with any of these steps, especially a termination, unless all four of us agree that it is the correct thing to do. Upon setting the date and time for the termination, our office administrator will notify building maintenance that we will need our electronic door lock codes changed on the day of termination (at a time after the employee has left the premises).

Termination procedures
For terminations in our office, generally three of us (the employee’s immediate supervisor, the chief investigator, and myself) are involved. The supervisor enters the employee’s office first, and then I enter, closing the door but leaving it cracked open, while our investigator stands outside that door. That’s in case the employee becomes aggressive—you can never anticipate how someone will react to being fired. Plus, several employees legally carry a firearm coming and going from the office. While they must put them away and not take them out until they are leaving the building, they still have access to the weapon in their office.
    I tell the employee he is terminated and that it is effective immediately. I explain the general reasons for the termination (insubordination, failure to follow office policy, no-shows, etc.), and I say that the supervisor will go over the details, give him a copy of his personnel file, and fill him in on the exit plan. I am courteous. Remember, even a bad employee is a human being so treat any terminated employee with dignity and respect.
    Then I exit the room and the chief investigator joins the supervisor (so there will be two supervisors present). They finish going through the issues that got everyone to this spot. Make this discussion to the point and as brief as possible. The point of this meeting is not to debate anything, though some employees may try to argue. Don’t let them. Stay focused on why you are there.
    The supervisors will also inform the employee that he will need to meet with HR for an exit interview to find out about the termination of benefits and his last paycheck. How the employee reacts to the news dictates how we handle removing his personal items from the premises. Usually, one or two investigators will meet the (now former) employee after-hours to pack up personal belongings.
    Lastly, the supervisors take all office keys and other property related to his employment from the employee. As a precautionary action, the chief investigator escorts the employee from the building. The chief investigator then informs the deputies at the screening station to our building that the employee is no longer a member of this office.
    The building maintenance people arrive and change our electronic door codes. The office administrator has a list of all the passwords for each employee’s computer and voicemail so we can gain access to those for work purposes only.
    Any termination should be confidential for the employee’s privacy, but remember that the other employees know, probably better than the supervisors, who the rule-breakers or slackers are. Office employees know something is up and if you do not say something, rumors will start. My approach is simply this. I call a meeting of all the office employees, which we have periodically, and I end by simply stating that “[So-and-So] is no longer working in this office.”
    That’s it. Everything I’ve learned from many years of leading and supervising people in prosecutor’s offices. I hope this article will be of some help in handling these situations. Until next time, always do the right thing and be sure to keep that white hat clean.