You've labored over the difficult decision to terminate an unwanted employee. You've ruled out potential discrimination and wrongful discharge claims. You've checked and double-checked with legal counsel. You think you're ready to communicate the decision. . .but, believe it or not, you're still not ready. This is when management gets sloppy. Management fails to realize the legal risks associated with claims based on how a discharge is carried out. Management also fails to take steps to protect its interests which are affected by terminating an employee.

The following are some issues to consider relating to the discharge process:

Disparagement Risk: Be aware that words and actions communicated both during and after the termination process can create employer liability. For example, the circumstances under which management requires an employee to gather his personal effects and leave the office can expose management to liability. Having a security guard escort a discharged employee out of the office or requiring him to pack up his things in front of his co-workers can cause extreme embarrassment and result in a claim of defamation by conduct. When possible, permit the discharged employee to clear her office when other employees are not present (i.e., a Saturday morning or after the close of business).

In addition, advise managers precisely what information should be disclosed to other employees concerning the employees termination. At times, it may be wise either to prepare a script or to distribute a memo explaining to other employees the reasons underlying the separation of employment. A memo or script can reduce the chance that management will make negative statements which may damage the employees reputation.

Property and Privacy Issues: While a discharged employee wants to leave the workplace with his personal effects, the employer wants to be sure the employee does not leave the workplace with its property and confidential information. Management needs to balance these competing interests.

Sometimes, while the employee is tied-up in the discharge meeting, you can send a company representative to reclaim company property from the employees workstation. After the discharge meeting ends, the employee can retrieve his personal items from his office. On other occasions it may be prudent to wait to reclaim the companys property and confidential information until after the employee has been informed of the discharge and is present for the review of the offices contents. To minimize the risk of a conversion claim, the employer, the employee, and a witness can simultaneously review each piece of property and document to determine its ownership.

Risks of Emotional Trauma and Violence: If you believe the soon-to-be discharged employee may have an extreme emotional, but non-violent, reaction, consider having a mental health professional participate in the discharge process. And, if you anticipate a violent reaction, especially if the employees discharge is due to a violent act or threat, you should have an individual trained in handling violence, such as a security employee or police officer, present during the discharge meeting. Furthermore, if you believe the discharged employee may return to the workplace, you may have a responsibility to provide adequate protection for the rest of your employees.